9911796707
TMI Blog2024 (4) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... t to allow the examination in chief and or cross examination of witness. In the present case, since the witness have categorically denied the statement it become incumbent on the adjudicating authority to conduct the examination in chief and thereafter allow the cross examination of the witnesses to the appellant. Without carrying out the process as envisaged under Section 9D, the adjudication is not fair, therefore the matter needs to be remanded to the adjudicating authority for passing a fresh order after conducting the examination in chief and thereafter allowing the appellant to cross examine the witnesses whose statements were relied upon. It is also made clear that despite all efforts of cross examination it the cross examination is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FY09-10 and had paid Tax of Rs. 37,74,500/-. From Panchanama, it appeared that both these persons were apprehended by the Income Tax authorities at Sardar Vallabhbhai Patel International Airport, Ahmedabad, on 14.01.2010. Certain documents viz. books of account and cash was seized from the aforesaid persons. With a view to carry out further investigation from Central Excise angle the officer of Central Excise Officer (Preventive), Ahmedabad-II, visited the premises of the appellant. Simultaneously, from the residence of Shri Bhikabhai Patel the officers recovered various documents/records for further investigation. Statements of various persons were recorded by the officers. On the basis of investigation carried out by the Department, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 4. He further submits that department has relied upon the statement given before income tax authorities for demanding duty of central excise. The circumstances for giving such a statement the Income tax authorities were entirely different. Some cash was recovered from the possession of Shri Bikhabhai Patel at the airport by the Income Tax Officers and he was compelled to disclose some income before the Income tax officers. The statement was given to escape from punishment for carrying unaccounted cash under any other law which envisaged imprisonment also and the amount disclosed was out of compulsion. Thus the circumstance were entirely different at that time, but the central excise duty cannot be demanded on such a disclosure. 5. He al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt alleges that the appellant had clandestinely manufactured and cleared excisable goods it should be supported by corroborative evidences. It is the prime burden on the department to prove whether the goods were manufactured and to whom they were cleared. In the present case there is no even a number about the manufacturing activity carried out by the appellant and the persons to whom the goods were cleared. Thus, it is clear that, the department has failed in all counts to prove that there had been manufacture and clearance of excisable goods from the factory. However the adjudicating authority had not adduced any evidence in support of the allegation of clandestine removal in the impugned order. He had relied upon the statement given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich it was alleged that the appellant had cleared the goods clandestinely. 10. The entire case is based on various punchnamas and statements of various persons as listed below : Though the adjudicating authority has confirmed the demand on the basis of the above evidences, Shri Bhikhabhai Patel has retracted his statement stating that no clandestine removal has taken place and also discarded the documents recovered. In this position particularly when the witnesses have objected their own statement, the examination in chief of witnesses and thereafter cross examination of the witnesses should be allowed in terms of Section 9D of Central Excise Rules, which is reproduced as under : SECTION 9D. Relevancy of statements under certain circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss examination of the witnesses to the appellant. Without carrying out the process as envisaged under Section 9D, the adjudication is not fair, therefore we are of the view that matter needs to be remanded to the adjudicating authority for passing a fresh order after conducting the examination in chief and thereafter allowing the appellant to cross examine the witnesses whose statements were relied upon. It is also made clear that despite all efforts of cross examination it the cross examination is not completed or partly completed, the adjudicating authority is not precluded to proceed with the adjudication on the basis of records. Accordingly, we set aside the impugned order and disposed of the appeal by way of remand to the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
