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TMI Blog2018 (8) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... corded anywhere that the attendance of the makers of the said statements, which have been used against the Appellants, could not be obtained for any of the reasons contemplated by Section 9D of the Act. That being so, it was not open to the Adjudicating Authority to rely upon the said statements without following the mandatory procedure contemplated by Section 9D of the Act - the Adjudicating Order has been passed in violation of the mandatory procedure prescribed by Section 9D of the Act. Matter remanded back to the adjudicating authority for de-novo adjudication after following the procedure as contemplated under section 9D of the Central Excise Act, 1944 - appeal allowed by way of remand. - Appeal Nos. E/50135- 50138/2018-DB - FINAL ORDER NO. 52806-52809/2018 - Dated:- 21-8-2018 - HON BLE MR. BIJAY KUMAR, MEMBER (TECHNICAL) And HON BLE MR. AJAY SHARMA, MEMBER (JUDICIAL) For the Appellant : Mr. J.P. Kaushik, Advocate For the Respondent : Mr. S.K. Bansal, DR ORDER Per : Ajay Sharma 1. The issue involved in these appeals are whether the appellants are manufacturing the branded jeans and are therefore liable to pay the Excise duty on it? And also whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 9D (1) of the Act makes it clear that clauses (a) and (b) of the said sub-section sets out the circumstance in which 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. If these circumstances are absent, the statement which has been made during inquiry/investigation, before a Central Excise Officer of a gazetted rank, cannot be treated as relevant for the purpose of proving the truth of the facts contained therein. The evidentiary value of the statements, insofar as proving the truth of the contents thereof is concerned, is completely lost, unless and until the case falls within the four corners of Section 9D(1). 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. From the facts of the present case it is clear that the witnesses, of whom the statements have been relied upon by the department, have not been examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice. 6. Similarly in the matter of G-Tech Industries vs. Union of India; reported in 2016 (339) ELT 209 (P H) the Hon ble High Court of Punjab Haryana while interpreting Section 9D of the Act, has held has under:- 5. A plain reading of sub-section (1) of Section 9D of the Act makes it clear that clauses (a) and (b) of the said sub-section set out the circumstances in which 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. 6. Section 9D of the Act came in from detailed consideration and examination, by the Delhi High Court, in J. K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) when the person who made the statement is kept out of the way by the adverse party, and (v) when the presence of the person who made the statement cannot be obtained without unreasonable delay or expense. 12. Once discretion, to be judicially exercised is, thus conferred, by Section 9D, on the adjudicating authority, it is self-evident inference that the decision flowing from the exercise of such discretion, i.e., the order which would be passed, by the adjudicating authority under Section 9D, if he chooses to invoke clause (a) of sub-section (1) thereof, would be pregnable to challenge. While the judgment of the Delhi High Court in J K Cigarettes Ltd. (supra) holds that the said challenge could be ventilated in appeal, the petitioner has 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. 21831/1994, dated 3-1-1995 [since reported in 1995 (75) E.L.T. A177 (S.C.)], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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