By TIOL News Service

NEW DELHI, SEPT 05, 2016: THE appellant has challenged the decision taken by the Principal Commissioner rejecting the request for cross-examination of Anmol Mishra and Ramesh Kumar Dammani, which has been communicated by the Superintendent (Adjudication) vide the impugned letter dated 20.05.2016.

A preliminary query was raised by the Bench as to whether an appeal would lie against the decision rejecting the request for cross-examination.

The appellant argued that the provisions for appeal are very much clear inasmuch it clearly states that a decision or order taken by the adjudicating authority can be appealed before the Appellate Tribunal. The appellant relied on the decisions in J & K Cigarettes Ltd. - 2009-TIOL-478-HC-DEL-CX and Swiber Offshore Construction Pvt Ltd - 2014-TIOL-58-CESTAT-AHM in support.

The Bench observed that the issue of maintaining an appeal against the decision rejecting cross examination stands decided and acknowledged in para 32(v) of the judgment of the Delhi High Court (supra) in J & K Cigarettes and, therefore, following the same the appeal is maintainable.

On merits, the appellants submitted that a statement recorded before a gazetted Central Excise officer under Section 14 of the CE Act, cannot be relied upon, for proving the truth of the contents thereof, straightaway by the adjudicating authority, unless and until the said statement satisfied the provisions of section 9D of the CEA, 1944.

The CESTAT, inter alia, adverted to the various case laws, namely, Basudev Garg - 2013-TIOL-464-HC-DEL-CUS, Bussa Overseas Properties Ltd - 2007-TIOL-185-SC-CUS, Kuber Tobacco Ltd - 2016-TIOL-769-CESTAT-DEL & Alliance Alloys Pvt Ltd - 2016-TIOL-1922-CESTAT-CHD and observed –

+ Most authoritatively, perhaps, this position of law is now crystallized by the judgment dated 17.06.2016 of the Hon'ble Punjab & Haryana High Court in Ambika International - 2016-TIOL-1238-HC-P&H-CX.

In this case, the High Court had held thus -

CX - s.9D of CEA, 1944 - There is no justification for jettisoning the procedure statutorily prescribed by plenary parliamentary legislation for admitting, into evidence, a statement recorded before the gazetted CE officer - Statements recorded during investigation, under Section 14 of the Act, whose makers are not examined-in-chief before the adjudicating authority, i.e. before Respondent CCE, would have to be eschewed from evidence, and it would not be permissible for Respondent CCE to rely on the said evidence while adjudicating the matter: High Court

The Bench concluded -

"9.15 In view of the above unequivocal expression of law as contained in a plethora of judicial authorities, the present appeal is allowed by setting aside the decision as communicated to the appellant by the impugned letter dated 20.05.2016, and the matter is remanded to the Principal Commissioner with a direction to adjudicate the Show Cause Notice strictly by complying with the mandate of Section 9D of the Act, in accordance with the directions contained in para 33 of the judgment of the High Court of Punjab & Haryana in Ambika International (supra)."

The appeal was disposed of.

(See 2016-TIOL-2321-CESTAT-DEL)