9911796707
TMI Blog2016 (6) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... on statements without admitting them in evidence by following the prescribed procedure contained therein. 5. The petitioner is registered with the Central Excise Authorities for manufacturing of menthol, dementholised oil ("DMO"), and "deterpenated fractionated menthol oil" among other items. The manufacturing unit of the petitioner is located in Bari Brahmana, Jammu. 6. The present proceedings essentially emanate from Show Cause Notice No. DZU/LRU/INV/C/CE/02/2011/1764 dated 9.4.2011 issued to the petitioner by the Commissioner under Section 11A of the act, alleging that the petitioner had evaded duty of Rs. 1,46,32,665/- by undervalueing its clearances during the period 2007 to 2010 proposing to demand a recovery thereof, along with interest and penalty, and requiring the petitioner to show cause there against. A copy of the said Show Cause Notice No. DZU/LRU/INV/C/CE/02/2011/1764 dated 9.4.2011 is annexed as Annexure P-1. 7. In view of the fact that the case of the petitioner is essentially premised on Section 9D of The Central Excise Act, 1944, it would be appropriate to reproduce the said provision, in extenso, thus : "9D. Relevancy of statements under certain circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which has been made during inquiry/investigation, before a gazetted Central Excise Officer, cannot be treated as relevant for the purpose of proving the facts contained therein. In other words, in the absence of the circumstances specified in Section 9D(1), the truth of the facts contained in any statement, recorded before a gazetted Central Excise Officer, has to be proved by evidence other than the statement itself. The evidentiary value of the statement, insofar as proving the truth of the contents thereof is concerned, is, therefore, completely lost, unless and until the case falls within the parameters of Section 9D(1). 11. The consequence would be that, in the absence of the circumstances specified in Section 9D(1), if the adjudicating authority relies on the statement, recorded during investigation in Central Excise, as evidence of the truth of the facts contained in the said statement, it has to be held that the adjudicating authority has relied on irrelevant material. Such reliance would, therefore, be vitiated in law and on facts. 12. Once the ambit of Section 9D (1) is thus recognized and understood, one has to turn to the circumstances referred to in the said subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily prescribed by plenary parliamentary legislation for admitting, into evidence, a statement recorded before the gazetted Central Excise officer, which does not suffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word "shall" in Section 9D (1), makes it clear that, the provisions contemplated in the sub-Section are mandatory. Indeed, as they pertain to conferment of admissibility to oral evidence they would, even otherwise, have to be recorded as mandatory. 17. The rationale behind the above precaution contained in clause (b) of Section 9D(1) is obvious. The statement, recorded during inquiry/investigation, by the gazetted Central Excise officer, has every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. Reliance may also usefully be placed on para 16 of the judgment of the Allahabad High Court in C.C.E. V Parmarth Iron Pvt Ltd, 2010 (250) ELT 514 (All), which, too, unequivocally expound the law thus: "If the Revenue choose (sic chose?) not to examine any witnesses in adjudication, their statements cannot be considered as evidence." 23. That adjudicating authorities are bound by the general principles of evidence, stands affirmed in the judgement of the Supreme Court in C.C. V Bussa Overseas Properties Ltd, 2007(216) ELT 659 (SC), which upheld the decision of the Tribunal in Bussa Overseas Properties Ltd v C.C., 2001 (137) ELT 637 (T). 24. In the light of the above, respondent no. 2 is directed to adjudicate the Show Cause Notice issued to the writ petitioner by following the procedure contemplated by Section 9D of the Act and the law laid down by various judicial authorities in this regard, including the principles of natural justice, in the following manner: (i) In the event that the Revenue intends to rely on any of the statements, recorded under Section 14 of the Act and referred to in the Show Cause Notices issued to Ambika and Jay Ambey, it would be incumbent on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
