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TMI Blog2017 (10) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... , Member (Judicial) And Mr. Devender Singh, Member (Technical) For the Appellant : Shri Naveen Mullick, Advocate For the Respondent : Shri Harvinder Singh, AR ORDER Per : Ashok Jindal The appellants are in appeal against the impugned order wherein the demand has been confirmed against M/s.Shiv Shakti Earth Movers and equivalent penalty is imposed. The penalty of ₹ 50 lakh each was also imposed on co-appellants. 2. The brief facts of the case are that on 2.4.2008, the searches were made at the premises of M/s.Shiv Shakti Earth Movers (SSE) and M/s.Robot Industries (RI) at 14/3, Matura Road, Faridabad. Thereafter, the panchnama was drawn, list of plant machinery an documents were prepared. During investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.-Del.) and Hon ble High Court of Punjab Haryana in the case of Jindal Drugs Pvt.Ltd.-2016 (340) ELT 67 (P H). 5. He also argued at length on merits and submits that in the impugned order, the adjudicating authority has relied upon the statement of Shri Santosh and his bank account and various deposits made but Shri Santosh has not been made the party to the show cause notice. In that circumstance, the cash receipt by Shri Santosh cannot be added to the clearance of the appellants. Moreover, it is also argued that deposits shown in the personal bank account of Shri N.K.Gupta and Shri Vivek Gupta, who are brothers have not been considered by the adjudicating authority. He also relied on the decision of the Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, in so far as proving the truth of the contents thereof is concerned, therefore, completely lost, unless and until the case falls within the parameters of Section 9D(1). Therefore, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D(1)(i) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the adjudicating authority has, thereafter, to form th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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