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TMI Blog2025 (4) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of intelligence received by DGGI, Ludhiana, it was indicated that Skoda Industries, Mandi Gobindgarh, a registered firm, operated by a person namely Sh. Sudhir Kapila, engaged in supply of dutiable iron and steel scrap, was fraudulently passing on Cenvat Credit of duty to various furnace units of Punjab on the strength of its forged/fake duty paid invoices. Thereafter, the business premises of Sh. Sudhir Kapila were searched by the officers of DGGI, Ludhiana on 13.04.2017 and the relevant records were taken into possession under Panchnama. During the investigation, it was revealed that during the period October-December, 2015, Skoda Industries had shown its purchase of duty paid waste and scrap of iron and steel from various manufacturing/ship breaking units located in the state of Gujarat i.e. Saibaba Shop Breaking Corporation, Sosiya (Bhavnagar) and Sagar Laxmi Ship Breakers, Alang (Bhavnagar) and their statements were recorded under Section 14 of the Central Excise Act, 1944 read with Section 174 of the CGST Act, 2017. Copies of all excise invoices issued by those two ship breaking units to Skoda Industries were taken into possession by the department and thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... koda Industries. He further submits that even the documentary evidence produced on record shows that Skoda Industries had not supplied any material to the appellant and had issued only fake invoices to help them to take illegal Cenvat Credit. 6. After considering the submissions made by both the parties and perusal of the material on record, I find that the entire case has been build on the basis of statements of witnesses as well as the documents supplied by the source manufacturers. Further, I find that the appellants from the very beginning has requested the adjudicating authority as well as the Commissioner (Appeals) to allow cross-examinations of all those persons whose statements have been relied upon against them, but the cross-examinations have been denied by the Revenue without any justified reasons. 7. Further, I find that vide the decisions in the cases of M/s Regal Alloys Pvt Ltd (supra), M/s Madhav Alloys Pvt Ltd (supra) and M/s Mittal Ceramics (supra), this Tribunal has considered the identical issue in details and has remanded the matter back to the adjudicating authority. 8. I also find that this Tribunal in the case of M/s Lauls Ltd and ors vs. CCE, Delhi-IV vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d requested for cross-examination vide their Letter dated 30.09.2009, they did not stress for cross-examination. We find that this argument is not acceptable as it was incumbent upon the Adjudicating Authority to follow the provisions of Section 9D of Central Excise Act, 1944. We find that the provisions of Section 9D of Central Excise Act, 1944 are as follows: "Section 9D. Relevancy of statements under certain circumstances- (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers 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 cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Gazetted Central Excise Officer, which does not suffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word "shall" in Section 9D(1), makes it clear that, the provisions contemplated in the subsection are mandatory. Indeed, as they pertain to conferment of admissibility to oral evidence they would, even otherwise, have to be recorded as mandatory. 18. The rationale behind the above precaution contained in clause (b) of Section 9D(1) is obvious. The statement, recorded during inquiry/investigation, by the Gazetted Central Excise Officer, has every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating 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 rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their exfactory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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