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TMI Blog2017 (8) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... ural justice and fair play require that the witnesses whose statements were recorded and relied upon to issue the show cause notice, are liable to be examined at that stage. Whether the charge of clandestine removal can be proved on the basis of statements of appellant or not? - Held that: - none of the procedure has been followed to allege clandestine removal of the goods against the appellant. Moreover, the 7 Kucha Slips which were recovered during the investigation are the part of the invoices issued by the appellant for clearances of the goods. Admittedly, all the clearances made by the appellant falls within the threshold limit of SSI exemption N/N. 8/2003-CE dated 01.03.2003. Therefore, in the absence of any corroborative evidence, the Revenue has failed to prove the charge of clandestine removal. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... le. To support his contention he relied on the decision of this tribunal in the case of M/s Sadashiv Steel Mills & Others Vs. CCE, Chandigarh (Final order No.61166-61171/2016 dated 08.08.2016). 4. On the other hand, ld. AR opposed the contention of the ld. Counsel and submits that during the course of investigation only the total sales shown by the appellant were recovered, 7 Kucha Slips were also recovered. The statements of the appellant was also recorded although the same was retracted but two statements were retracted after a lapse of one year and thereafter the affidavit was also withdrawn. He also submits that as the appellant did not come forward with the investigation with regard to suppliers and buyers, therefore no investigation could be conducted at their end. Moreover, on the basis of documents recovered and the corroborative statements of the appellants, demand is rightly confirmed by the adjudicating authority. 5. Heard both sides and considered the submission. I find that in this case the appellant has raised two issues, (i) whether the statement of appellant is admissible as an evidence in terms of provisions of Section 9D of the Act or not. (ii) whether the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a Court." "8. The main contention of the appellant is that the deponents whose statements have been relied upon by the adjudicating authority were not put to examination-in-chief before providing an opportunity of cross-examination. A plain reading of sub-section (1) of Section 9D 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 Excise Officer of a gazetted rank, during the course of inquiry or proceeding under the Act, shall be relevant, for the purpose of proving the truth of the facts contained therein. Therefore, there is no doubt about the legal position that the procedure prescribed in sub-section (1) of Section 9D is required to be scrupulously followed, inasmuch as in adjudication proceedings as in criminal proceedings relating to prosecution. Therefore, sub-section (1) of Section 9D set out the circumstances in which a statement, made and signed by a person before the Central Excise Officer shall be relevant, for the purpose of proving the truth of the facts contained therein. If the circumstances are absent, therefore, the statement, which has been made during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. (supra) wherein the High Court has observed as under :- 16. We, therefore, have no hesitation in holding, that there is no requirement in the Act or Rules, nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon to issue the show cause notice, are liable to be examined at that stage. If the Revenue choose not to examine any witnesses in adjudication, their statements cannot be considered as evidence. However, if the Revenue choose to rely on the statements, then in that event, the persons whose statements are relied upon have to be made available for cross-examination for the evidence or statement to be considered." The said view has been has been affirmed by the Hon'ble Punjab & Haryana High Court in the case of Jindal Drugs Pvt. Limited Vs. UOI - 2016 (340) ELT 67 (P&H). Admittedly, in the case in hand, examination in chief has not been conducted, therefore the statements of the appellant during the course of investigation is not admissible evidence, in the light of the above cited judicial pronouncements. As regards the second issue, I find that the Revenue has relied on 7 Kucha Slips and one p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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