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TMI Blog2017 (9) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944 have not been followed by the adjudicating authority, which were required to be followed as per law at that time. It is well settled principle that the adjudicating authority cannot straightaway rely on the statement recoded during investigation unless the conditions set out in Section 9D are fulfilled. The matter requires to be adjudicated afresh by the adjudicating authority after following the procedure laid down under Section 9D of the Act and by following the principles of nature justice - appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... o M/s.Steel Services. He further referred to the statements of the owners of the vehicles in para 9 to 20 of the show cause notice who categorically stated that they had not transported any goods from M/s.HSAL to the respondent. He referred to the statements of the transporters M/s. Bedi Golden Transport Co. and M/s.Delhi Calcutta Road Carriers who stated that they had not transported any goods to the respondent and that their vehicles had been used for transportation of SS flats from M/s.HSAL to Wazirpur and Jahangirpur Industrial area. 2.1 Ld.AR also referred to the 21 GRs which were submitted by the respondent and stated that out of 21 GRs, it was found that 2 GRs have been issued by M/s. Bedi Golden Transport Co., Delhi, 17 GRs have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been shown to have transported goods from M/s.HSAL to the party against invoices nos.481 dt.21.07.05, 545 dt.30.07.05 & 609 dt.20.08.05 respectively. 2.3. He relied on the following cases: (i) CCE, Ludhiana Vs. Indian Special Castings (P) Ltd.-2008 (227) ELT 322 (Tri.-Del.) which was confirmed by Hon'ble Punjab and Haryana High Court reported in 2010 (255) ELT 209 (P&H) and SLP against the said was dismissed by Hon'ble Supreme Court. (ii) CCE, Chandigarh Vs. Shakti Roll Cold Strips Pvt.Ltd.-2008 (229) ELT 661 (P&H). 3. Ld.Advocate for the respondent submitted that on the basis of said investigation, few cases of availment of Cenvat credit have been decided in favour of the assessee. In this regard, he referred to the following ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Ld. Commissioner (Appeals) suffers from a serious infirmity. In the paragraph 5 of the findings, the Ld. Commissioner (Appeals) has recorded the following findings: "It has been brought about by the investigation that the conveyance on which the inputs have been stated to be received in the factory of the appellant was found to be fictitious. The fictitious nature of transfer taken of the inputs have been proved from the statement recorded from the various transporters by the investigating agency under section 14 of Central Excise Act. None of the persons whose statement have been recorded retracted back from their statements. It is not necessary that for every statement, the adjudicating authority should permit cross examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be appropriate to reproduce the said provision, in extenso, thus: "9D. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution. 17. As already noticed herein above, sub-section (1) of Section 9D sets out the circumstances in which a statement, made and signed before a gazetted Central Excise Officer, shall be relevant for the purpose of proving the truth of the facts contained therein. If these circumstances are absent, the statement, 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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