2017 (10) TMI 431

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....the case are that on 2.4.2008, the searches were made at the premises of M/s.Shiv Shakti Earth Movers (SSE) and M/s.Robot Industries (RI) at 14/3, Matura Road, Faridabad. Thereafter, the panchnama was drawn, list of plant & machinery an documents were prepared. During investigation, various statements were also recorded. Even one Sh. Rupesh Verma, witness who gave statement against the appellant and on the basis of statement of Sh. A.P. Malik and other documents, the show cause notice was issued to demand duty jointly and severely form M/s.SSE and RI and to impose penalty. The matter was adjudicated by the adjudicating authority who held that M/s.RI is dummy unit and therefore, casted liability to pay duty on M/s.SSE and various penalties w....

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....ellants. Moreover, it is also argued that deposits shown in the personal bank account of Shri N.K.Gupta and Shri Vivek Gupta, who are brothers have not been considered by the adjudicating authority. He also relied on the decision of the Tribunal in the case of Arya Fibres Pvt.Ltd. Vs. CCE, Ahmedabad-2014 (311) ELT 529 (Tri.) wherein criteria has been laid down by this Tribunal to prove the charge of clandestine manufacture and clearance. In view of the precedent decision of this Tribunal, the impugned order is not sustainable in the eyes of law. 6. Learned AR opposed the contention of the learned Counsel but fully agree that without affording cross examination of the witness to the appellant, the Revenue can proceed with the case. 7. Hear....

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....(1) of Section 9D set out the circumstances in which a statement, made and signed by a person before the Central Excise Officer shall be relevant, for the purpose of proving the truth of the facts contained therein. If the circumstances are absent, therefore, the statement, which has been made during the course of inquiry/investigation, before a gazetted Central Excise Officer, cannot be treated as relevant for the purpose of proving the fact contained therein as observed by Hon'ble Delhi High Court in the case of J.K. Cigarettes (supra) wherein Hon'ble High Court has observed as under :- Bare reading of the above section manifests that under?12. certain circumstances, as stipulated therein, statement made and signed by those persons befo....

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....ority, under clause (b) of Section 9D(1)(i) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the adjudicating authority has, thereafter, to form the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. The same view has been taken by Hon'ble Allahabad High Court in the case of Parmarth Iron Pvt. Ltd. (supra) wherein the High Court has observed as under :- We, therefore, have no hesitation in holding, that there is 16. no requirement in the Act or Rules, nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon ....