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2011 (11) TMI 13 - HC - Central ExciseProvision of Section 9D - Relevancy of statements under certain circumstances - Right to cross examining the witnesses - Held that - It is apparent that the tribunal has invoked the said Section and held that the conditions mentioned in the said Section are satisfied. Learned counsel for the appellant is right in their contention that the said section could not have been invoked by the tribunal without the appellant being given an opportunity to meet the said contention. It is the contention of the appellant before us that the pre-conditions of Section 9D are not satisfied and that the said section cannot be invoked. It is submitted that the judgment of this Court in J&K Cigarettes (2009 -TMI - 34472 - DELHI HIGH COURT) requires satisfaction of the said conditions and an opportunity should have been given to the assessee to contest and oppose the applicability of Section 9D of the Act. The observations of the Delhi High Court in J&K Cigarettes (2009 -TMI - 34472 - DELHI HIGH COURT) quoted above supports the aforesaid contention of the appellant that an opportunity should be given to the assessee to offer explanation and contest, when the Revenue relies upon Section 9D of the Act. - matter remanded back to tribunal for fresh decision.
Issues Involved:
1. Whether the CESTAT was correct in dismissing the Appeal of the Appellants by relying upon Section 9D of the Central Excise Act when the adjudicating authority had not invoked the provision in its order-in-original. 2. Whether the CESTAT failed to appreciate that failure on the part of the Central Excise Department to produce witnesses on whose statement they are relying upon does not mean that the Appellant has given up its right for cross-examining the witnesses. Issue-wise Detailed Analysis: 1. Reliance on Section 9D of the Central Excise Act: The first issue is whether the CESTAT was correct in dismissing the appeal by relying on Section 9D of the Central Excise Act when the adjudicating authority had not invoked this provision in its order-in-original. The High Court noted that Section 9D was not relied upon by the Assessing Officer, who did not examine whether the pre-conditions for invoking Section 9D were satisfied. The tribunal applied Section 9D without giving the appellant an opportunity to contest its applicability, which was a procedural error. The court highlighted that the tribunal must reexamine the question of the application of Section 9D, considering the pre-conditions and giving the appellant a chance to contest its applicability. 2. Right to Cross-examine Witnesses: The second issue is whether the CESTAT failed to appreciate that the failure of the Central Excise Department to produce witnesses for cross-examination does not mean the appellant gave up its right to cross-examine them. The court noted that the appellant had requested to cross-examine the witnesses whose statements were relied upon by the Revenue, but many witnesses did not appear for cross-examination. The tribunal invoked Section 9D to admit the statements without cross-examination, which the High Court found problematic as the appellant was not given an opportunity to contest the applicability of Section 9D. The court emphasized that the tribunal must reconsider this aspect and determine whether the conditions for applying Section 9D were met, ensuring the appellant's right to cross-examine witnesses is upheld. Conclusion and Directions: The High Court directed the tribunal to reexamine the application of Section 9D and the appellant's right to cross-examine witnesses. The court also addressed the interim measures regarding the deposit of a further sum by the appellant and the non-encumbrance of assets to balance equities and cut short delays. The appeal was disposed of with directions for a fresh decision by the tribunal on remand.
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