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TMI Blog2022 (3) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9D has not been followed with respect to the statements. The Commissioner should be given an opportunity to follow the procedure under section 9D and come to the conclusion as to which of the statements relied upon in the show cause notice should be admitted in evidence and thereafter decided the matter. Needless to say that if any person is examined as a witness under section 9D and if any of the noticees wishes to cross-examine such a person an opportunity of cross-examination should also be provided. Matter remanded to the Original authority to follow the procedure under section 9D in respect of all the statements that have been relied upon and pass reasoned order after following principles of natural 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 ..... nsiders unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court." 3. The impugned order shows that the statements that have been relied upon in the impugned order have not passed through the procedure required under section 9D. 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, insofar as proving the truth of the contents thereof is concerned, is, therefore, completely lost, unless and until the case falls within the parameters of Section 9D. It has been held by the Hon'ble High Court of Punjab and Haryana in the case of Jindal Drugs Pvt. Ltd.1 as follows: 9. A plain reading of sub-section (1) of Section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one has to turn to the circumstances referred to in the said sub-section, which are contained in clauses (a) and (b) thereof. 14. Clause (a) of Section 9D(1) refers to the following circumstances : (i) when the person who made the statement is dead, (ii) when the person who made the statement cannot be found, (iii) when the person who made the statement is incapable of giving evidence, (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. 15. 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 petitioners have also invited attention to an unreported s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 19. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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