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TMI Blog2017 (9) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order cannot be sustained - reliance placed in the case of M/s Jindal Drugs Pvt Ltd and Anr. Vs Union Of India [2016 (6) TMI 956 - PUNJAB & HARYANA HIGH COURT], where it was 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. Matter remanded back to the original authority for a fresh decision after complying with the provisions of Section 9D and also for re-verification of quantification of demand that may arise on re-adjudication - appeal allowed by way of remand. - Excise Appeal No.3716/2010, 745, 746, 747,748, 749, 750, 751, 752/2011 - A/55446-55454/2017-EX[DB] - Dated:- 24-7-2017 - (Dr.) Satish Chandra, President And Mr B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944. The Commissioner also imposed various amount of penalties on other noticees including the proprietor of the main appellant, under Rule 26 of Central Excise Rules, 2002. 2. The ld Counsels appeared on behalf of the above appellants strongly contested the findings in the impugned order. The submissions made on behalf of the main appellant can be summarized as below: (a) Legal mandate of examination of witnesses under Section 9D of the Central Excise Act was not followed, hence the impugned order is not legal and proper and is liable to be set aside on this ground alone. (b) The impugned order has been passed in flagrant violation of the principles of natural justice, as the request made by the appellants for cross-exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of the original authority. He submitted that the case has been investigated in various angles. Apart from the private record recovered from various premises, corroborations by way of statements given by different persons have been relied upon by the original authority. The case of clandestine manufacture and clearance have been established upon detailed scrutiny of various available evidences by the original authority. He also examined the applicable case laws on the legal principles contested by the noticees. As such, the ld. AR submitted that the impugned order cannot be faulted. 5. We have heard both the sides and perused appeal records. We note that impugned order relied on various documentary and oral evidence to arrive at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of clearance of excisable goods. It is clearly recorded by the original authority that the adjudication of the case was on the basis of the recovered documents as well as statements of various persons. In fact, it is recorded by the original authority that the strict rules of Evidence Act and the standard proof envisaged therein do not apply to departmental proceedings. In this, the original authority relied on certain decisions of the Hon ble Apex Court. However, we note that during the course of examining, the authenticity of private record as well as the nature and scope of entries made therein, the original authority heavily relied on statements of various persons. In para 36 of the impugned order, the original authority noted the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the said challenge could be ventilated in appeal, the petitioners have also invited attention to an unreported short order of the Supreme Court in UOI and Another V. GTC India and Others in SLP (C) No. 2183/1994, dated 3-1-1995 wherein it was held that the order passed by the adjudicating authority under Section 9D of the Act could be challenged in writ proceedings as well. Therefore, it is clear that the adjudicating authority cannot invoke Section 9D(1)(a) of the Act without passing a reasoned and speaking order in that regard, which is amenable to challenge by the assessee, if aggrieved thereby. 16. If none of the circumstances contemplated by clause (a) of Section 9D(1) exists, clause (b) of Section 9D(1) comes into opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally justifiable. Accordingly, without going into the merits of the case, we find that on this legal objection, the impugned order cannot be sustained. 10. One more aspect which is strongly contested by the main appellant is the calculation adopted in the proceedings to arrive at the total duty demand. It is submitted that the duty demand has been arrived at by totaling the figures, compiled from torn papers, details shown in the documents of railway booking agents, dispatch figures shown in the record of the transport companies and sale figures shown in the records of the dealers. It is the submission of the main appellant that these figures have been taken thrice for calculation of duty. It is submitted that when the goods are shown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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