2025 (10) TMI 965
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....xtended period provisions. The appellant filed a detailed reply dated 20.02.2017 to the show cause notice denying all charges of clandestine manufacture and removal of sponge iron by them during the period FYs 200910 and 2010-11. The appellant also sought crossexamination of various persons. On the basis of the submissions made, the adjudicating authority was requested to drop the proceedings. After due process, the Adjudicating authority confirmed the demand along with interest and penalty against the appellant company and also imposed penalties on the other noticees. Being aggrieved, they all filed their Appeals before the Commissioner (Appeals), who vide the impugned Orders in Appeal, has dismissed their appeals. Being aggrieved, the appellants have filed the present appeal before the Tribunal. 2. The Ld. Counsel, appearing on behalf of the appellant makes the following submissions: 2.1. It is submitted the allegation that the appellant company has clandestinely removed 4994.899 MT of sponge iron to M/s Sai Electrocasting Pvt. Ltd., Koderma (hereinafter referred to as Sai Electrocasting), involving excise duty of Rs. 63,82,269/-, for which the demand is based on the follow....
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....icers 9 Statement of Jitesh Kumar Singh dt. 30.3.2011 [(i) - see pgs. 11, 67 of Comp; p. 40 Appeal] (i) Statement was general, vague and overarching in nature, without explaining handwritten contents of the entries made by drivers in "Vehicle Driver Copy" seized from the transporter. (ii) Translated true typed copy of this handwritten statement was never provided to the appellant [see Meenakshi Re-rollers Pvt. Ltd. v. CCE, 2010 (249) E.L.T. 255 (Tri. - Mumbai) (iii) Given the above deficiencies, cross examination was sought by the appellant of JKS (see p. 116, 119, 127 of Appeal), but denied on the apprehension by the adjudicating authority that the appellant was trying to delay the proceeding (see pgs.226-227 OIO, particularly para 100 thereof). The adjudication is therefore in violation of natural justice principles [see Basudev Garg Vs. CCE reported in 2013 (294) ELT 353 (Del.)] (i) Statement inadmissible also due to being in contravention of Section 9D inasmuch as the statements relied upon were given to the inquiry officers and not the adjudicating authority [see CC v. Junaid Kudia, (2024) 16 Centax 504 (S.C.) affirming, Junaid Kudia v. Commissioner - (....
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....am Road Lines (see p. 40 Appeal; p. 47 Comp) (i) Handwritten notes, obscure and indecipherable scribblings. No extract thereof or page reference provided within the RUD to show from where the tonnage has been determined (ii) No mention of any party, location, period, truck number readily obtainable from notes maintained by various drivers of the transporter (iii) Total freight receipts purportedly of Rs. 5,85,294/- and Rs. 17,75,289 not shown in any extract and not reconciled with any consignment as part of the RUDs. (iv) No cross examination of panchas allowed in spite of panchnama drawn in presence of police officers 9 Statement of Jitesh Kumar Singh dt. 30.3.2011 [(i) - see pgs. 11, 67 of Comp; p. 40 Appeal] (i) Statement was general, vague and overarching in nature, without explaining handwritten contents of the entries made by drivers in "Vehicle Driver Copy" seized from the transporter. (ii) Translated true typed copy of this handwritten statement was never provided to the appellant [see Meenakshi Re-rollers Pvt. Ltd. v. CCE, 2010 (249) E.L.T. 255 (Tri. - Mumbai) (iii) Given the above deficiencies, cross examination was sought by the appellant of JK....
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....at Rs. 27.60 Lakhs 197.17 MT SSIL, Jhinkpani to SSL, Koderma RUD Defence 6 Extract of Cash Book seized from Satyam Road Lines (see p. 39, 40 Appeal; p. 45 Comp) (i) Handwritten notes, obscure and indecipherable scribblings. Names of transacting parties not mentioned anywhere, be it SSIL or SSL. (ii) Driver concerned that entered the details in the said extract not interrogated. (iii) Not corroborated by any statement of any person (including Jitesh Kr. Singh) that specifically addresses or explains this extract. (iv) No cross examination of pancha allowed in spite of panchnama drawn in presence of police officers 9 Statement of Jitesh Kumar Singh dt. 30.3.2011 [(i) - see pgs. 11, 67 of Comp; p. 40 Appeal] (i) Statement was general, vague and overarching in nature, without explaining handwritten contents of the entries made. (ii) Translated true typed copy of this handwritten statement was never provided to the appellant [see Meenakshi Re-rollers Pvt. Ltd. v. CCE, 2010 (249) E.L.T. 255 (Tri. - Mumbai) (iii) Given the above deficiencies, cross examination was sought by the appellant of Jitesh Kr. Singh (see p. 116, 119, 127 of Appeal), but de....
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....SL, Koderma RUD Defence 12 Manually prepared chart being record no. 79 of Panchnama dt. 30.3.2011 - RUD 2 [see pp. 41, 42 of Appeal, p.14-17, 73, 109 of Comp]. (i) Sl. 79 of RUD 2 as described in the Panchnama was supposed to be a miscellaneous file with 9 pages (see page 17/Compilation). However, what has been supplied as part of the RUD as well as reproduced in the SCN (see p. 42 of Appeal, and p. 109 of Comp.) is only a single page tabulation with various entries and purported truck numbers handwritten on it. There are no parties identified and the appellant SSIL and SSL are not mentioned in this tabulation/chart. Apart from the apparent discrepancy in the number of pages resumed, and produced as part of the RUD, there is no indication prima facie that the entries pertain to any transaction involving the appellant. (ii) Chart allegedly prepared by one Ashish Kumar Singh, being an employee of Satyam Road Lines (transporter), who has not been interrogated. Rather, he has allegedly given a general endorsement at the bottom of Jitesh Kumar Singh's statement dt. 30.3.2011 that he agrees with the statement of Jitesh Kumar Singh. This was done, also be....
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....e statement contradicts the allegations made and is unreliable. (ii) No discussion on quantum or tonnage of clearance; or any specific record or document or any period; very general, nonspecific and vague; has little evidentiary value (Swastik Stockists v. CC, Kolkata, 2025 (8) TMI 1235-CESTAT KOLKATA). Claimed that statement was obtained under duress (see p. 149 of Appeal) 31 Statement of Sita Ram Agarwal [see p.51, 94 of Appeal, p.178 of Comp] (x) No mention of any quantity or tonnage of goods cleared, or any discussion as to any consignment or record seized. Broad agreement with witness statements, most of which have not been relied upon during adjudication and/or for which no corresponding document/evidence has been made available by the Dept. either. (xi) Repeats the error of Deepak Kr. Agarwal and mentions the proprietor of the transporter as "Rupesh Singh" instead of Jitesh Kumar Singh. Reveals non-application of mind and unfamiliarity with facts and duress. This becomes apparent when he agrees with a Panchnama dt. 30.3.2011 being a proceeding that was undertaken in his absence. Statement thus, unreliable and obtained under coercion and duress as ....
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....e to being in contravention of Section 9D inasmuch as the statements relied upon were given to the inquiry officers and not the adjudicating authority [see CC v. Junaid Kudia, (2024) 16 Centax 504 (S.C.) affirming, Junaid Kudia v. Commissioner - (2024) 16 Centax 503 (Tri. - Mumbai); Hi Tech Abrasives Ltd. v CC, 2018 (362) ELT 961 (Chhatisgarh)] 9 Statement of Jitesh Kumar Singh dt. 30.3.2011 [(i) - see pgs. 11, 67 of Comp; p. 40 Appeal] (ii) Statement obtained in the presence of several police officials loses evidentiary value [JA Naidu v. State of Maharashtra, 1983 (13) ELT I611(SC); CC v. Sheo Shankar Jaiswal, 2010 (261) E.L.T. 187 (Tri. - Del.)] (iii) Statement was general, vague and overarching in nature, without explaining handwritten contents of the entries made by drivers in "Vehicle Driver Copy" seized from the transporter. (iv) Translated true typed copy of this handwritten statement was never provided to the appellant [see Meenakshi Re-rollers Pvt. Ltd. v. CCE, 2010 (249) E.L.T. 255 (Tri. - Mumbai) (v) Given the above deficiencies, cross examination was sought by the appellant of JKS (see p. 116, 119, 127 of Appeal), but denied on the apprehension by the....
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.... Defence - Computerised printout from weighing scale at SSIL (see p. 44 of Appeal; p. 116 of Comp.) (i) No Record of Computer Printouts allegedly derived from the weighing scale at at SSIL, supplied as part of RUD to the appellant. List of RUDs and Panchama dt. 30.3.2011 (RUD 3) makes no mention of this printout. (ii) Statements of weigh scale operator, Md. Jalaluddin (RUD 15 - see p. 44 of Appeal, p. 116 of Comp.) and Rajesh Kr. Sinha, Accounts Manager at SSIL dt. 30.3.2011, irrelevant in the absence of the primary evidence, being the computer printout. Uncorroborated statements have no evidentiary value. VII. Clearance of Sponge Iron of 154.50 MT valued at Rs. 21.63 Lakhs 154.50 MT SSIL, Jhinkpani to SSL, Koderma RUD Defence 18, 19 Files "A" and "B" seized from Cash Office of SSIL [see pp. 45, 84, 97 of Appeal, p.132, 154 of Comp]. (i) Appellant's reply at page 396 of the Appeal, clearly indicates that all 11 invoices were issued as determined from the said seized files. Such invoices were not considered or discussed. (ii) No corroborative statement of any witness discussing these records or the specific transactions that would indicate....
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....mar Singh's endorsement below the signature of Jitesh Kumar Singh, is illegal and is not in terms of Section 14 of the CEA, since no independent summons were issued to Ashish Kumar Singh. Therefore, on this ground also the statement of Jitesh Kumar Singh, cannot be entertained as evidence. On this ground also the conclusions arrived at are required to be set aside. 2.6. The Gujarat High Court has held in CCE vs Gujarat Cypromet Ltd. [2017 (345) ELT 520 (Guj)] that "When the Revenue is placing heavy reliance on certain statements of the witnesses recorded during the course of investigation, without their being anything peculiar, the Appellants were well within their right to seek cross-examination. The High Court has further held that merely because the statements, according to the adjudicating officer, were recorded without threat, duress or coercion or that the witness at no stage retracted their statements, cannot be a ground for rejecting the request for cross-examination." The Gujarat High Court has observed that using a deposition that is not cross-examined, may amount to using evidence, which the party concerned has no opportunity to question. 2.7. Apart from this, ther....
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....y after that the statement can be entered as an evidence by the Revenue. In this case, this procedure was all the more required because the entire premise of clandestine removal is based on the private records seized from a third party's premises and the statement about clandestine removal has been recorded by that third party. 8. We have gone through the statement recorded by the Transport owner Jitesh Kumar Singh. The relevant page is reproduced below: 9. It is seen that he has stated that the records have been maintained by his employee Ashish Kumar. After the signature of Jitesh, just below the employee has vouched to the effect that he has gone through the pages recorded by his employer and he stands by the same and he has signed the statement. This is quite unusual for the Statement recorded under Section 14 of CEA 1944. There is nothing to indicate that the employee Ashish Kumar was issued the summons and was made aware that the statement is being recorded in terms of Section 14 of the CEA 1944. Therefore, his assertion at the end of the page serves no purpose and cannot be even taken as a statement recorded under Section 14. Coming to the statement recorded by the, Ji....
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....ctors of the appellant), Narendra Kumar Rathod (security guard), Satyanand Soi (security-in-charge) and Ishwar Prasad Verma (loading-in-charge) were recorded under section 14 of the Central Excise Act. 5............The relevant portions of the show cause notice are as follows: "4.4 Thus the officers in the presence of two independent Panchas and Shri Harsh Agrawal, Director of the Noticee No. 1 ascertained shortages of stock as declared by Shri Harsh Agrawal, Noticee No. 2 in respect of GI Wire, HB Wire, Wire Rod & Waste - Scrap as 476.206 MT, 7759.274 MT and 245.306 MT & 112.088 MT respectively. On being asking about the shortage of stock, so ascertained, Shri Harsh could not tender any satisfactory reply to the officers and accepting such shortage of stock, he assured of paying total Central Excise Duty of Rs. 3,04,24,623/- thereon shortly. He also deposed in reply to question no. 7 of his Statement dated 08/09.04.2016 (RUD-2), recorded under Section 14 of the Central Excise Act, 1944 as also inter-alia deposed in reply to question no. 1 of his another statement dated 11.04.2016 (RUD-3), recorded under Section 14 of the Central Excise Act, 1944, that he has peru....
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....ng submissions: (i) Statements of witnesses recorded under section 14 of the Central Excise Act before a Gazetted Central Excise Officer during the course of investigation cannot be relied upon unless the procedure contemplated under section 9D of the Central Excise Act is scrupulously followed. Such statements would have no evidentiary value if the persons making them are not examined before the adjudicating authority and they are admitted in evidence in the interests of justice as is contemplated under section 9D(1)(b) of the Central Excise Act. In this connection reliance has been placed on the following decisions: (a) Jindal Drugs Pvt. Ltd. vs. Union Of India6; (b) G-Tech Industries vs. Union of India7; (c) M/s. Anjani Steels Ltd. vs. Commissioner of Central Excise and Service Tax, Raipur8; (d) M/s. Drolia Electrosteel P. Ltd. vs. Commissioner, Customs, Central Excise & Service Tax, 12. A perusal of the impugned order shows that it is based primarily on the statements of Harsh Agrawal, Director of the appellant, Narendra Kumar Rathod, security guard of the appellant, Satyanand Soi, security-in-charge of the appellant and Ishwar Prasa....
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....on that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court." 21. It would be seen section 14 of the Central Excise Act and section 108 of the Customs Act enable the concerned Officers to summon any person whose attendance they consider necessary to give evidence in any inquiry which such Officers are making. The statements of the persons so summoned are then recorded under these provisions. It is these statements which are referred to either in section 9D of the Central Excise Act or in section 138B of the Customs Act. A bare perusal of sub-section (1) of these two sections makes it evident that the statement recorded before the concerned Officer during the course of any inquiry or proceeding shall be relevant for the purpose of proving the truth of the facts which it contains only when the person who made the statement is examined as a witness before the Court and such Court is of the....
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....as to form an opinion, having regard to the circumstances of the case, whether the statement should be admitted in evidence in the interests of justice. The judgment further holds that in adjudication proceedings, the stage of relevance of a statement recorded before Officers would arise only after the statement is admitted in evidence by the adjudicating authority in accordance with the procedure contemplated in section 9D(1)(b) of the Central Excise Act. The judgment also highlights the reason why such an elaborative procedure has been provided in section 9D(1) of the Central Excise Act. It notes that a statement recorded during inquiry/investigation by an Officer of the department has a possibility of having been recorded under coercion or compulsion and it is in order to neutralize this possibility that the statement of the witness has to be recorded before the adjudicating authority. The relevant portions of the judgment are reproduced below: "15. A plain reading of sub-section (1) of Section 9D of the Act makes it clear that clauses (a) and (b) of the said sub-section set out the circumstances in which a statement, made and signed by a person before the Central Excis....
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....hat the evidence of the witness has to be recorded before the adjudication authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 25. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). 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(1). For this, he ....
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.... be admitted in evidence only in accordance with the provisions of section 9D of the Central Excise Act. After examining the provisions of sub-sections (1) and (2) of section 9D of the Central Excise Act, and after placing reliance on the judgment of the Punjab and Haryana High Court in Ambika International, the Chhattisgarh High Court held: "9.3 A conjoint reading of the provisions therefore reveals that a statement made and signed by a person before the Investigation Officer during the course of any inquiry or proceedings under the Act shall be relevant for the purposes of proving the truth of the facts which it contains in case other than those covered in clause (a), only when the person who made the statement is examined as witness in the case before the court (in the present case, Adjudicating Authority) and the court (Adjudicating Authority) forms an opinion that having regard to the circumstances of the case, the statement should be admitted in the evidence, in the interest of justice. 9.4 The legislative scheme, therefore, is to ensure that the statement of any person which has been recorded during search and seizure operations would become relevant only w....
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....n when his examination before the adjudicating authority in the proceedings instituted upon show cause notice was not recorded nor formation of an opinion that it requires to be admitted in the interest of justice. In taking this view, we find support from the decision in the case of Ambica International v. UOI rendered by the High Court of Punjab and Haryana." (emphasis supplied) 26. In Additional Director General (Adjudication) vs. Its My Name Pvt. Ltd.26 decided on 01.06.2020, the Delhi High Court examined the provisions of sections 108 and 138B of the Customs Act. The department placed reliance upon the statements recorded under section 108 of the Customs Act. The Delhi High Court held that the procedure contemplated under section 138B(1)(b) has to be followed before the statements recorded under section 108 of the Customs Act can be considered as relevant. The relevant paragraphs of the judgment of the Delhi High Court are reproduced below: "76. We are not persuaded to change our view, on the basis of the various statements, recorded under Section 108 of the Act, on which the Learned ASG sought to rely. Statements, under Section 108 of the Act, we ma....
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....t leaves us with (b) which requires the court or the adjudicating authority to first examine the person who made the statement and form an opinion that having regard to the circumstances of the case, the statement should be admitted in evidence. Of course, the party adversely affected by the statement will have to be given an opportunity to cross examine the person who made the statement but that comes only after the statement is, in the first place, after examination by the adjudicating authority, admitted in evidence. This has not been done in respect of any of the 35 statements. Therefore, all the statements are not relevant to the proceedings. 15. It has been held in a catena of judgments including Jindal Drugs Pvt. Ltd. versus Union Of India [2016 (340) E.L.T. 67 (P&H)] that section 9D is a mandatory provision and if the procedure prescribed therein is not followed, statements cannot be used as evidence in the proceedings under Central Excise Act. ***** 16. Therefore, the 35 statements relied upon in the SCN are not relevant and hence also not admissible." (emphasis supplied) 28. It, therefore, transpires from the aforesaid decisions that bo....
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....f stock cannot be sustained in the absence of corroborative evidence. In this connection, reference can be made to the judgment of the Punjab and Haryana High Court in Anand Founders & Engineers and the relevant portion of the judgment is reproduced below: "6. The Commissioner (Appeals) set aside the findings of the clandestine removal of the goods recorded by the adjudicating authority by holding that the assessee's record which were admittedly lying in the adjoining sister concern M/s. Adhunik Industrial Corporation were not scrutinized. Further, it was held that the assessee had clarified the stock position vide letter dated 9-8-2008 which was rejected summarily as an after-thought without making the verifications. Shri Kamal Kant in his statement has admitted only shortages and not the fact of clandestine removal and there was no evidence to show the clandestine activities as no further investigation was conducted to establish the identity of the buyers or the suppliers of the raw materials. The adjudicating authority had mentioned that the production was recorded by weight but in the sale invoices, the goods were sold by numbers without indicating the weight of the fi....
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....2.2 ***** The inference regarding clandestine removal ought to be outcome of a detailed investigation and consideration of other relevant incriminating material which could be based on the stock of raw material, finished products, use of consumption of electricity, employment of labour and many other relevant material as noticed in the decisions reported in 2014 (309) E.L.T. 411 and 2017 (345) E.L.T. 187 rendered by the High Court of Allahabad and High Court of Jharkhand, respectively. What, amongst other things, could be relevant consideration of clandestine removal, was discussed as below : "12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects : (i) To f....
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....he correct central excise duty from the noticee upon whom or upon which allegation of clandestine removal of the finished product is levelled. The electricity consumption report like Dr. N.K. Batra report can hardly be treated as substantive evidence. Time and again, the decisions have been given by the Tribunals but the respondents-departments are turning deaf-ear to. In this case, they are also turning deaf-ear to their own circular dated 26-6-2014 (Annexure-3 to the memo of this writ). In this case, the respondents are relying upon Dr. N.K. Batra's report, also upon the allegation that much less salary has been paid to the employee and the unit is running in losses. All these are nothing but the possibilities, for clandestine removal, but, for proving the clandestine removal, the substantive piece of evidence is must. Few such evidences have been referred by this Court. The list of these evidences is not exhaustive. (I) The department should have collected the proof of amount received from the consignees, statement of consignees, receipts of sale proceeds by the consignor and its disposal." (emphasis supplied) 44. The inevitable conclusion, therefore, that woul....
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