TaxTMI 
TaxTMI 
2019 (11) TMI 1846
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....t, we are concerned with their factory at Door No. 374, Kunoor High Road, Ayanavaram, Chennai ("the Ayanavaram Factory" for brevity) where they were manufacturing the aforesaid items. They were registered with the Central Excise Department. 3.2. One S. Srinivasan (A3) was the Vice-President of Macneill. Since Macneill was running into losses, S. Srinivasan (A3) and others left the Company and floated a new Company by name "Kilburn Electricals Limited" in 1987 for manufacturing the same items in their Factory at No. 18/8, 3rd Main Road, Ambattur Industrial Estate, Chennai-58 ("Kilburn's Ambattur Factory" for brevity). 3.3. As Macneill had a soft corner for Kilburn (A2), since the Promoters of Kilburn were its (Macneill's) erstwhile Employees, they both entered into a Memorandum of Understanding, dated 18.3.1988, under which, Kilburn (A2) was permitted to take over the Ayanavaram factory of Macneill and run it. 3.4. While that being so, the Officers of the Central Excise Department raided the Ayanavaram Factory on 27.7.1989 and also Kilburn's Ambattur Factory and collected various materials, which showed that finished items had gone out of both the factories without pa....
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...., 2 Witnesses were examined and 6 Documents were marked. 3.10. After considering the evidence on record and hearing either side, the Trial Court, by Judgment and Order, dated 26.10.2010 in E.O.C.C. No. 82 of 1994, convicted A1 to A3 and sentenced them as under: Accused Provision under which convicted Sentence Williamson (A1) Section 9(1)(b) read with 9(1) and Rule 173-F punishable under Section 9(1)(b)(i) of the CESA Fine of Rs. 10,000 Section 9(1)(bbb) read with Rule 173-G punishable under Section 9(1)(bbb)(i) of the CESA Fine of Rs. 10,000 Section 9(1)(c) read with Rules 173-B, 173-C & 226 (3 counts) punishable under Section 9(1)(c)(i) of the CESA Fine of Rs. 10,000 Kilburn(A2) Section 9(1)(b) read with 9(1) and Rule 173-F punishable under Section 9(1)(b)(i) of the CESA Fine of Rs. 10,000 Section 9(1)(bbb) read with Rule 173-G punishable under Section 9(1)(bbb)(i) of the CESA Fine of Rs. 10,000 Section 9(1)(c) read with Rule 173-B, 173-C & 226 (3 counts) punishable under Section 9(1)(c)(i) of the CESA Fine of Rs. 10,000 S. Srinivasan (A3) Section 9(1)(b) read with 9(1) of the CESA and Rule 173-F Imprisonment till rising of the Court and to pay a Fine of Rs. 1....
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..... P7. The prosecution has not examined Ramakrishnan to prove Ex. P9-Series. 7. Mr. N.P. Kumar, learned Special Public Prosecutor placed strong reliance on Sections 9-D & 36-A of the CESA and submitted that the statement of Ramakrishnan and the documents in Ex. P9-Series can be treated as substantive evidence in the light of the said provisions. To appreciate his contention, it may be necessary to extract these two provisions, which read as follows: "Section 9-D. Relevancy of Statements under certain circumstances.-- (1) A Statement made and signed by a person before any Central Excise Officer of a Gazetted rank during the course of any Inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,-- (a) when the person, who made the Statement, is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person, who made the Statement, is examined a....
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....f evidence. A statement given by a Witness to the Police under Section 161(3), Cr.P.C. cannot even be used to corroborate his testimony in the Court, but, can be used only to contradict him. The law being thus, certain Revenue Statutes like the CESA, etc. provide for a Special rule of evidence for treating a Statement of a person as a substantive piece of evidence. The Parliament, in its wisdom, reposed faith in the investigation of Revenue offences by Revenue Officers and also was aware of the difficulties that would be faced by them while prosecuting a Revenue offender in a Court of law. 9. Section 9-D, along with its analogous provisions, was inserted into the CESA vide Clause 19 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (Act 36 of 1973). This amendment was a consequence of the 47th Report of the Law Commission of India on "Trial and Punishment of Social and Economic Offences" submitted to the Government of India in February, 1972. For the purpose of the discussion at hand, the observations of the Commission were as follows: "Statements made in Administrative Adjudications: 14.1. Many of the Acts dealing with economic offences empower....
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....se than via disposition), where its effect was too prejudicial, in these words - "where the peg is so small and the linen so bulky and dirty that a jury will never see the peg, but merely yield to indignation at the dirt". Somewhat similar considerations make it desirable that the Court should have this power, since the provision which we are, recommending is itself new." It is, therefore, obvious that the use of a Statement made before a Central Excise Officer of a Gazetted rank under the CESA cannot be pressed in aid, if the conditions stated therein are not satisfied. 10. In this backdrop, if we analyse Section 9-D of the CESA, extracted above, it can be inferred that a Statement of a person recorded by any Central Excise Officer of a Gazetted rank can be treated as a substantive piece of evidence, without he being examined in the Court, provided the Department is able to establish the existence of the conditions set out in sub-section (a). The conditions set out in sub-section (a) are in pari materia with the ones set out in the first clause of Section 33 of the Evidence Act. 11. Ex hypothesis the Department should first adduce evidence before the Court that the deponent is ....
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....in a Civil Suit that a Witness, who is to testify against him should give his evidence before the Court trying the case which then has the opportunity of seeing the Witness and observing his demeanour and can thus form a better opinion as to his reliability than is possible from reading a Statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the Witness to be before the Court, and it is only by a Statutory provision that this can be achieved. But the Court must be careful to see that the conditions on which the Statute permits previous evidence given by the Witness to be read are strictly proved. In a Civil case, a party can, if he chooses, waive the proof, but in a Criminal case strict proof ought to be given that the Witness is incapable of giving evidence......" (emphasis supplied) The provisions of Section 9-D(1)(a) of the CESA being in pari materia with Section 33 of the Evidence Act, the principles governing the invocation of Section 33, ibid., will apply to a case under Section 9-D(1)(a) of the CESA as well. 13. At this juncture, it is essential to remind the trial Courts that, whenever they rely upon a Sta....