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TMI Blog2019 (3) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... h requires the witness to be examined in Adjudication proceedings, which includes cross –examination, therefore, the statements recorded under Section 14 have to be eschewed from evidence. Also, the department is relying upon the records recovered from the premises of M/s. Rudraksha Marketing, Delhi. However, it is found that appellants were having a family dispute with them, which is evident from the pleadings and various documents annexed with the appeal. Therefore, the recovered documents (from Rudraksha) cannot be relied upon in isolation. In the present case, there is no credible evidence which shows that the appellant is involved in clandestine removal of goods - appeal allowed - decided in favor of appellant. - Excise Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the appellant. He further stated that they purchased goods from the appellant, with Bill and without Bill also. The goods purchased without Bill, were sold in cash, and without bills. The officers of Central Excise, recorded the statement of Shri Suresh Kumar Garg on 23.02.2008 as well. Thereafter, the statements of Shri K N Mehrotra, Manager of the appellant Shri Purshottam Kumar Arya, partner of the appellant were recorded on 29.02.2008. The statement of Shri Purshottam Kumar Arya was further recorded on 01.03.2008 and on 07.03.2008. 3. Based on the admission of clandestine removal of goods, Shri Purshottam Kumar Arya and Shri K. N. Mehrotra of the appellant, were arrested on 07.03.2008 as per directions of the Commissioner, Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellant obtained ex-parte stay as well. However, the matter was referred for Arbitration to Sole Arbitrator Sh. Devinder Gupta, former Chief Justice of Andhra Pradesh High Court was appointed. The learned Arbitrator vide interim order dated 8.3.2006 granted ad-interim stay in favour of the appellant. That various dealers including Rudraksha Marketing were common between the appellant and other firms of their brothers/ relatives. The relatives are at loggerheads and kept trying to put the other in trouble. In the meanwhile, the Central Excise officers visited the factory and depot premises of the appellant on 11.03.2008. After getting the bail, Shri Purshottam Kumar Arya and Shri K. N. Mehrotra, retracted their statements. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Commissioner. Since, there was delay in depositing the said amount, the appellants i.e. Shri Purshottam Kumar Arya and Shri K. N. Mehrotra sought clarification from the High Court for condoning the delay. The High Court vide order dated 24.09.2018 have condoned the delay. 4. The learned Counsel for the appellant submitted that statements recorded under Section 14 of Central Excise Act cannot be relied as evidence without following the provisions of Section 9D as held by Hon ble Punjab Haryana High Court in the case of G. Tech Industries vs. Union of India -2016 (339) ELT 209 (P H) . It was further argued that, no cross examination of various witnesses were allowed, therefore, no reliance can be placed on the said statements. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandate of Section 9D of the Central Excise Act has not been followed by the learned Commissioner. The H n ble High Court of Punjab and Haryana in the case of Jindal Drugs vs. Union of India [2016 (340) ELT 67 (P H) held as follows:- 25 . In the light of the above, respondent no. 2 is directed to adjudicate the show cause notice issued to the writ petitioners by following the procedure contemplated by Section 9D of the Act and the law laid down by various judicial authorities in this regard, including the principles of natural justice, in the following manner : (i) In the event that the Revenue intends to rely on any of the statements, recorded under Section 14 of the Act and referred to in the show cause notices issued to Ambika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -settled position in law that statements recorded behind the back of an assessee cannot be relied upon, in adjudication proceedings, without allowing the assessee an opportunity to test the said evidence by cross-examining the makers of the said statements. If at all authority is required for this proposition, reference may be made to the decisions of the Hon ble Supreme Court in Arya Abhushan Bhandar v. U.O.I., 2002 (143) E.L.T. 25 (S.C.) and Swadeshi Polytex v. Collector, 2000 (122) E.L.T. 641 (S.C.). 7. We find that, in view of the law declared by the Hon ble High Court of Punjab and Haryana, if the provisions of Section 9D is not followed, then the statement recorded under Section 14, cannot be relied upon. In the present case, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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