9911796707
TMI Blog2017 (9) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... DM Fragrance which is the proprietary concern owned by Sh Tara Chand Sharma. The main appellant was engaged in the manufacture of "Mantriji" and "Meharban" brand Pan Masala containing tobacco (Gutkha) liable to Central Excise Duty. The officers of DGCEI, New Delhi conducted the certain search and verification in various premises in October, 2005. Follow up investigations were also conducted. Certain documents were recovered and statements of various persons were recorded. On completion of the investigation, a SCN dated 01.10.2009 was issued to the main appellant and 19 others. The SCN mainly alleged un-accounted manufacture of clearance of dutiable Pan Masala/Gutkha by the main appellant. Central Excise Duty was demanded as well as proposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of clandestine removal, transport unaccounted goods or records recovered from the premises of the main appellant. The whole demand is based on certain statements and projections based on certain unauthenticated private records. (d) The computation of duty is wrong. Each figure based on same set of evidence is taken three times resulting in improper projection of duty demand. (e) The torn paper was considered as evidence for estimation of duty loss without ascertaining the author and the authenticity of the said paper. No corroboration of any sort is available to support allegation. When the main appellant is imposed with a penalty under Section 11AC, there can be no further penalty on the proprietor under Rule 26. The proprietor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agents, transporters, dealers of the impugned goods. 6. The main appellant strongly objected to the manner of adjudication of case by the original authority. The preliminary objection is on non-adherence of the statutory requirements in terms of the Section 9D of the Central Excise Act, 1944 during the course of adjudication of the present case. In this connection, we have perused the impugned order. Admittedly. reliance has been placed on various statements given by the connected persons for arriving at the findings in the impugned order. We note two important points from the impugned order. The first one is finding of the original authority regarding need for cross-examination. In para 46 of the impugned order, the original authority re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of Section 9D, we note that the legal position has been well-settled. The Hon'ble Delhi High Court in JK Cigarettes Ltd, 2009, 242 ELT 189 Delhi and the Hon'ble Punjab and Haryana High Court in M/s G.Tech Industries Vs UOI - 2016 (339) ELT 209 (P&H) and in the case of M/s Jindal Drugs Pvt Ltd and Anr. Vs Union Of India - 2016 (340) ELT 67 (P&H) (CWP No.12714 of 2016-Date Of Decision 21 June, 2016), have held that the adjudicating authority has to mandatory comply with the legal requirement of Section 9D and if he fails the order passed is vitiated. The observation of the Hon'ble Punjab and Haryana High Court is as below: "15. Once discretion, to be judicially exercised is, thus conferred, by Section 9D, on the adjudicating authority, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has, thereafter, to form the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. 17. There is no justification for jettisoning this procedure, statutorily 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 mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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