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TMI Blog2017 (6) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts of the present case is that M/s Nashik Strips is engaged in manufacture of M.S Ingots. During investigation at M/s Salasar Ispat it was found from the records of M/s Salasar Ispat that M/s Nashik Strips has cleared 797.325 MT of M.S Ingots without payment of duty. The records seized from M/s Shri Salasar stands admitted by Shri Pravesh Gautam the director of said concern. Further evidence was also found from the premises of broker Shri Vijay Jindal, Shri Harish Gandhi and Shri Pradeep Sarogi wherein in their statements they stated that the goods were cleared from the factory without payment of duty. Reliance was also placed upon the director of M/s Nashik Strips, Shri Pawan Kumar Agarwal wherein he stated that the goods were cleared without payment of duty. The adjudicating authority confirmed the demand and imposed penalties as above. The Appellants filed appeals before the Commissioner (Appeals), Nashik which stand rejected. Hence the present appeals. 3. Shri Ashok Singh, Ld. Counsel appearing for the Appellant submits that nothing incriminating was found from the premies of M/s Shri Salasar Ispat. The statements of Shri Pravesh Gautam, Director of M/s Shri Salas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has accepted the said transactions. He relies upon the order No, A/ 1456 - 1458/ 15/ EB dt. 04.06.2015 in case of Salsar Ispat wherein penalty was imposed upon him for having received goods clandestinely from other manufacturers. Also relies upon Tribunal order No. A/929 931/15/EB dt. 23.04.2015 in case of M/s Krishna Steel Industries wherein from the same investigation the demands were confirmed against other manufacturers and penalty was imposed upon director of M/s Salasar Ispat. Reliance is also placed upon order in case of M/s MITC Rolling Mills in Appeal No. E/ 607 to 609/10 wherein the demand was confirmed against M/s MITC for availing illegal credit. 5. I have gone through the impugned order and submissions made by both the sides. I find that the demands against M/s Nashik Strips is mainly based upon the records seized from the premises or the places connected with Shri Salasar Ispat and its director Shri Pravesh Gautam. Also reliance has been placed upon the statement of brokers through whom M/s Nashik Strips cleared the goods. I find that no records and documents were found from the premises of Appellant firm M/s Nasik Strips. Further the lade Counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Section 9D of the Central Excise Act, 1944 reads as under :- "9D. Relevancy of statement under certain circumstances. - (1) A statement made and signed by a person before any Central Excise Officer of a gazette rank during the course of any inquiry or proceedings 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 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 as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of sub-section (1) to any proceedings under the Act other than a proceeding before the Court. In this manner, Section 9D can be utilized in adjudication proceedings before the Collector as well. In the present case, provisions of Section 9D of the Act were invoked by the Collector holding that it was not possible to procure the attendance of some of the witnesses without undue delay or expense. Whether such a finding was otherwise justified or not can be taken up in the appeal." 14. The Division Bench also observed that though it cannot be denied that the right of cross-examination in any quasi judicial proceeding is a valuable right given to the accused/Noticee, as these proceedings may have adverse consequences to the accused, at the same time, under certain circumstances, this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in Section 9D of the Central Excise Act, 1944. The circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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