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TMI Blog2019 (8) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ses exercise the option to test the evidence by way of cross examination. The said right is otherwise permitted under Section 138 of the Indian Evidence Act, 1932. Whether the statements of the persons as are prayed to be cross examined qualify to be called as statement simplicitor? - HELD THAT:- The statements even if retracted can form the basis of conviction without examination of the persons making confessions in the manner as mentioned under Section 9D of Excise Act/138 of the Indian Evidence Act. When the confession of co-accused/ co-noticee can be used as evidence under Section 3 of the Evidence Act? - HELD THAT:- Since the statement of the Directors of the Company are opined to be in the form of confessions, the Directors are none but those who have stepped into the shoes of the accused Company. Otherwise also, they themselves are co-noticees and the imposition of penalty has been proposed against them - the fundamental right as enshrined under Article 20(3) of the Constitution of India which prohibits self incrimination is applicable to both of them. The confessional statements are out of the ambit of Section 9D as relied upon by the appellant and as has been cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that M/s. SCIPL has colluded with their overseas suppliers and has fabricated documents and created parallel set of documents i.e. invoices to be submitted to Customs with an intention of evading payment of applicable duty and invoices for the purposes of actual payments. While they have made payments on the basis of invoices showing actual transactional value, they have caused duplicate invoices showing lesser value to the Customs Authorities for the purpose of assessment. Both the afore-named Directors were observed to be the master mind for the entire fraud committed by M/s. SCIPL as they only aided the Company in suppressing the actual value paid for the imports to their suppliers i.e. M/s. Akemi. Department also observed that M/s. SCIPL have used the services of M/s. Dadson Global Cargo, New Delhi who facilitated clearance of cargo of M/s. SCIPL through 7 different CHAs. None of those CHAs were observed to have followed the KYC norms nor did they bother to ascertain the credentials of M/s. SCIPL. Resultantly, a show cause notice No. 03/2017 dated 22.02.2017 was served upon M/s. SCIPL, both its Directors, Proprietor of M/s. Dadson Global Cargo and all the CHAs as named in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (317) ELT 145 (Tri. Del.) J K Cigarettes Ltd. Vs. Collector of Central Excise reported in 2009 (242) ELT 189 (Del.) Arya Abhushan Bhandar Vs. Union of India reported in 2002 (143) ELT 25 (S.C.) 4. While rebutting these arguments it is submitted on behalf of the Department that the principles of natural justice do not require that in each and every matter the person who has given information should be examined in presence of the appellant/assessee or should be allowed to be cross examined by the person concerned in support of the statements made before the Customs Authorities. It is submitted that Section 9D as relied upon by the appellant is not applicable to the given circumstances because the person who are prayed to be cross examined are not any other persons but the Directors and the employees of the appellant/ assessee and their statements actually are the confessions on the part of the appellant that too to the Customs officers who are not the police officers, which bind the appellant with no opportunity to the appellant Company to cross examine the person making statement on appellant s own behalf. Thus, there is no infirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion deals expressly with the circumstances in which a statement recorded before a Gazette Officers can be treated as relevant for the purposes of proving the truth of contents thereof. What is categorically required by the Section is that the person whose statement was earlier recorded before Gazette Officer has to be examined as witness before the adjudicating authority who thereafter has to arrive at an opinion that having regard to the circumstances of the case the statement should be admitted in evidence in the interest of justice. It is only after both these steps are complied with that the statement would be eligible for being treated as relevant in the proceedings so that the assessee can if it so chooses exercise the option to test the evidence by way of cross examination. The said right is otherwise permitted under Section 138 of the Indian Evidence Act, 1932. 6. The entire case law relied upon by the appellant is based on Section 9D. Thus, it becomes important for us to adjudicate as to: Whether the statements of the persons as are prayed to be cross examined qualify to be called as statement simplicitor. 7. Admittedly Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of conviction without examination of the persons making confessions in the manner as mentioned under Section 9D of Excise Act/138 of the Indian Evidence Act. 9. It is also an apparent and admitted fact that Shri Vineet Saluja and Shri Pradeep Sharma are not merely the Directors/ agents of appellant Company but are the co-noticees as well. Hon ble Apex Court in the case of Haricharan Kurmi and Jogia Vs. State of Bihar reported in 1964 Constitutional Bench of Supreme Court 1184 has considered the controversy as to: When the confession of co-accused/ co-noticee can be used as evidence under Section 3 of the Evidence Act. 10. The Hon ble Court held that though the confession of co-accused cannot be treated as substantive evidence but if the Court believed other evidence and felt the necessity of seeking an assurance in respect of its conclusion deducible from the said evidence the confession of the co-accused could be used. Seeing from this angle also, there appears no need for permitting cross-examination at least of Shri Vineet Saluja and Shri Pradeep Sharma. 11. Since the statement of the Directors of the Company are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be entitled to intercept the relevant documents they would not be entitled to cross examine any witness. 13. From the above discussion it becomes clear that the confessional statements are out of the ambit of Section 9D as relied upon by the appellant and as has been considered in the various case laws relied upon by the appellant. The co-noticee, if his statement amounts to confession, cannot be compelled to be cross examined and there would be no violation of principles of natural justice in that case. Though ample opportunity with the proceede/assessee has to be granted to put forth his defence, however, the assessee cannot be compelled to self-incriminate himself. In view of the said observations we are of the opinion that permission for cross examining Shri Vineet Saluja and Shri Pradeep Sharma has rightly been denied. As far as Ms. N. Rashmi and Shri Amit Mallik are concerned, since their statements as were given during the investigation do not amount to confession, they both can be allowed to cross-examine but not against their wish. 14. As a consequence of entire above discussion, we hereby partly allow the Appeal by way of remand directing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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