2017 (8) TMI 1386

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....r of Central Excise & Service Tax (Appeals-IV), Mumbai, are in appeal here. The recovery was ordered on a finding that goods had not been supplied against invoices issued by M/s Sunrise Zink Ltd used for availing CENVAT credit as in statement of the appellant-director. 2. Heard Learned Counsel for appellants and Learned Authorized Representative. While the latter reiterated the finding of the first appellate authority that there was sufficient evidence for the impugned order to conclude that goods had not been supplied, the former contends that the original authority had arrived at this conclusion erroneously by not subjecting the statement to cross-examination as sought by them. It was also submitted that the same plea made before the f....

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....r's right of cross examination is held contrary to the law explained in Basudev Garg (supra).' 5. The decision in re G-Tech Industries is more categorical in holding that '14. There is no justification for jettisoning this procedure, statutorily prescribed by plenary parliamentary legislation for admitting, into evidence, a statement recorded before the Gazetted Central Excise officer, which does not suffer front the handicaps contemplated by clause (a) of Section 9D(l) of the Act. The use of the word "shall " in Section 9D(l), makes it clear that, the provisions contemplated in the sub-section are mandatory. Indeed, as they pertain to conferment of admissibility to oral evidence they would, even otherwise, have to be recorded....

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....oke clause (a) of Section 9D(l). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(l). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice. 17. In fact, Section 138 of the Indian Evidence Act, 1872, clearly sets out the sequence of evidence, in which evidence in-chief has to precede cross-examination, and cross-examination has to precede re-examination. 18. ....