Telangana High Court
Commissioner Of Customs vs M/S. Venkateswara Silk Mills on 22 October, 2024
*THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
*THE HON'BLE SRI JUSTICE NAMAVARAPU
RAJESHWAR RAO
+CENTRAL EXCISE APPEAL No.148 of 2006
% 22-10-2024
#Commissioner of Customs and Central Excise, Hyderabad-IV.
...Appellant
vs.
$M/s. Venkateswara Silk Mills.
... Respondent
!Counsel for the Appellant: Sri A. Rama Krishna Reddy.
^Counsel for Respondent: Sri B. Chandrasen Reddy, Senior Counsel.
<Gist :
>Head Note :
? Cases referred
1. (2011) 12 SCC 243
2. (1974) 2 SCC 544
3. (1997) 1 SCC 508
4. 2016 SCC OnLine P&H 5038
5. 2017 SCC OnLine Bom 8811
6. 2021 SCC OnLine Bom 13137
7. 2022 SCC OnLine Jhar 165
8. (2018) 362 ELT 961 (Chattisgarh)
9. AIR 1963 SC 375
10. 1961 SCC OnLine Bombay 5
11. (2013) 3 SCC 801
2
SP, J & RRN, J
CEA_148_2006
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
CENTRAL EXCISE APPEAL No.148 of 2006
(Per Hon'ble Sri Justice Sujoy Paul)
Between:
Commissioner of Customs and Central Excise, Hyderabad-IV.
...Appellant
vs.
M/s. Venkateswara Silk Mills.
... Respondent
JUDGMENT PRONOUNCED ON: 22.10.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
___________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
SP, J & RRN, J
CEA_148_2006
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU
RAJESHWAR RAO
CENTRAL EXCISE APPEAL No.148 of 2006
JUDGMENT (Oral): (Per Hon'ble Justice Sujoy Paul)
This appeal filed under Section 35 (G) of the Central Excise Act, 1944 (for short 'Excise Act') against order of reversal passed by CESTAT on 20.12.2005 was admitted on the following substantial questions of law:
"1. Whether the CESTAT is justified in setting aside the demands of duty confirmed and the penalties imposed by the adjudicating authority by passing a well reasoned order wherein the facts of the case and the circumstantial evidence are clearly brought out and the evasion of duty is clearly established beyond doubt? and more so whether the Tribunal can ignore binding admissions made by the managing partner of the respondent firm and its sole distributors and various other traders?
2. Whether the appellant herein is still obligated to prove the clandestine manufacture and clearance of excisable goods when the Managing Partner of the respondent firm and its sole distributors and various other traders admitted the facts and more so admitted facts need not be proved?"
FACTUAL BACKGROUND AND REVENUE'S STAND:
2. Sri A. Rama Krishna Reddy, learned counsel for the appellant submits that a search took place in the premises of respondent firm on 29.08.1996. The firm was found to be indulging in clandestine transfer of finished goods without paying excise duty through its sister concerns namely M/s. Geetha 4 SP, J & RRN, J CEA_148_2006 Synthetics and M/s. Shakthi Traders. The search was conducted in the presence of two witnesses and recovered certain goods and lastly, 'punchanama' dated 29.08.1996 was prepared. The man made material (MMF) and raw material i.e., grey fabric were found in excess for the stock reflected in statutory records and excess stock was seized. The 'punchanama' was drafted and named as GS/55/70.
3. The case of the revenue was that during the course of search the sister concerns received goods without raising central excise invoices. Sri Narendra Kumar Goel is the Managing Partner of M/s. Venkateshwara Silk Mills, Sri Mahendra Kumar Goel and Sri Dharmendra Kumar Goel, who are brothers were Managing Partners running sister concerns M/s.Geetha Synthetics and M/s.
Shakthi Traders respectively.
4. Sri Rama Krishna Reddy, learned counsel for the revenue submitted that the modus operandi of respondent is clear from the statements of Sri Ramakrishna Rao, Manager of respondent and Sri Srinivasa Rao, Accountant-in-charge of M/s. Geetha Synthetics and Sri Babulal, Accountant of M/s. Shakthi Traders that they receive the goods only from respondent without central excise invoices and turnover with and without the cover of 5 SP, J & RRN, J CEA_148_2006 invoices was 50:50 % on their average monthly turnover of Rs.10,00,000/- that the goods received with proper bills were sold under printed cash/credit bills and such sales were properly accounted for in records and goods received without central excise documents were sold without using printed bill books and used for the bill books. For these sales, note pad books having folios in triplicate with printed serial numbers were used. He further explained that on preparing three folios note pad book at the time of sales of unaccounted goods, the originals were handed over to the party and remaining two will be retained by them at the time of receiving the payment, which was strictly in cash, the original was taken back and the cash along with triplicate sent to Sri Mahendra Kumar Agarwal, the proprietor of M/s. Geetha Synthetics or to Sri Narendra Kumar Goel, according to their availability, generally the bills will be destroyed by party on making payment and or by receiving the same and those transactions were not reflected in any of the account.
5. The appellant in support of its case examined the brothers of the Managing Partner, accountants of firms and purchasers and distributors and recorded their statements and incorporated in GS/55/70. It is jointly urged that GS/55/70 is crucial 6 SP, J & RRN, J CEA_148_2006 file/document wherein all the real incriminating material was prepared and kept in single file namely GS/55/70.
6. Learned counsel for the revenue further submits that the learned Commissioner passed a detailed order after marshalling the entire evidence on 25.09.2001, which is running nearly in 219 pages. The said findings are based on the evidence of 12 witnesses and such findings of fact which are based on correct appreciation of evidence should not have been disturbed by CESTAT by the impugned order dated 20.12.2005.
7. The stand of the revenue is that Section 9D (2) of the Excise Act is not applicable. The learned Tribunal has not given cogent reasons why the findings of the Commissioner cannot sustain judicial scrutiny despite the fact that it is founded upon the statement of 12 witnesses. If they were not produced during the adjudication proceedings and were not permitted to be cross examined by the respondent, it will not cause any dent on the case of the revenue. Heavy emphasis is laid on the word 'prosecution' employed in Section 9D of the Excise Act. It is submitted that said provision is applicable in cases of 'prosecution' and necessity to cross-examine can be pressed into 7 SP, J & RRN, J CEA_148_2006 service only when the case reached to the stage of 'prosecution' and not for adjudicating proceedings.
8. Sri Rama Krishna Reddy by placing reliance on the judgment of Supreme Court in the case of Commissioner of Central Excise, Mumbai v. Kalvert Foods India Private Limited 1 submits that a plain reading of this judgment will show that the facts of that case are almost similar to the case in hand. The clandestine manner which was adopted in the case before the Supreme Court is almost similar to present case if modus operandi of both the cases are examined in juxtaposition. Secondly, reliance is placed on the judgment of Collector of Customs, Madras v. D. Bhoormall 2, to bolster the submissions that burden in a case of this nature to show innocence was on the respondent. The reliance is lastly placed on the judgment of Supreme Court in the case of Surjeet Singh Chhabra vs. Union of India 3, to submit that in a case where there exists a clear 'confession' the production of witness and cross-examination was not necessary.
9. In addition, Sri Rama Krishna Reddy, learned counsel for the appellant submits that Sri Babulal is a crucial witness. Although, he was not produced as witness before adjudicating authority and 1 (2011) 12 SCC 243 2 (1974) 2 SCC 544 3 (1997) 1 SCC 508 8 SP, J & RRN, J CEA_148_2006 was not subjected to cross-examination, the relevant document of his deposition from the file was sent to Government Examiner for questioned documents. The said authority opined that the signature on the document in question is indeed of Babulal. Thus, if Babulal was not produced for cross-examination, it will make no difference or cause prejudice to the other side. Stand of Respondent:
10. Sri B. Chandrasen Reddy, learned Senior Counsel for the respondent supported the order impugned and urged that Section 9D of the Excise Act will be applicable whether or not it is a case relating to prosecution. If any incriminating material is sought to be used against the appellant, appellant as per principles of natural justice deserves an effective opportunity to rebut the same and cross-examine the witnesses. By placing reliance on the judgment of Punjab and Haryana High Court in G-Tech Industries v. Union of India 4, it is submitted that clause (b) of Section 9D (1) would be applicable. The Punjab and Haryana High Court in clear terms held that if the person whose statement is recorded before the Gazetted Central Excise Officer is not produced before the adjudicating authority and he was not 4 2016 SCC OnLine P&H 5038 9 SP, J & RRN, J CEA_148_2006 subjected to cross examination, such statement has to be eschewed from consideration.
11. The Division Bench judgment of Bombay High Court in Ciabro Alemao v. Commissioner of Customs 5 was referred to submit that almost a similar substantial question cropped up for consideration i.e., whether in the teeth of Section 138B of the Customs Act, 1962 (for short 'Customs Act'), which is pari materia provision, in departmental adjudication the witness is required to be produced. It is submitted that the Division Bench clearly held that without producing such witnesses in the adjudication proceedings and without subjecting them to cross-examination, those statements cannot be used against the assessee. It is further highlighted that there is no unconditional, unequivocal, admission or confession on the part of the Managing Partner. The reliance is placed on paragraph S 5.1 of the order of adjudicating authority wherein he opined that the Sri Narendra Kumar Goel, Managing Partner of VSM has not admitted or 'confessed' anything.
12. Learned Senior Counsel for the respondent placed reliance on another judgment of Bombay High Court in the case of 5 2017 SCC OnLine Bom 8811 10 SP, J & RRN, J CEA_148_2006 Prakash Raghunath Autade v. Union of India 6, wherein Section 9D of the Excise Act was considered and it was held that during adjudication proceedings, the relevant witnesses needs to be summoned and in absence thereof, such statements shall not be relied upon against the assessee unless he has been given suitable and reasonable opportunity to cross-examine such witnesses.
13. Furtherance, learned Senior Counsel for the respondent placed reliance on the statement of N.K.Prasada, Assistant Commissioner of Central Excise. The adjudicating authority in paragraph No.65 recorded that during cross-examination, Sri N.K. Prasada, in response to the specific question stated that document GS/55/70, did not carry the signatures of 'panch' witnesses, did not indicate the period for which it is related and did not indicate whether the particulars mentioned therein represented Rupees or linear meters. It was not possible on seeing the said document to conclude that it was prepared by Babulal.
14. In this view of the matter, even otherwise, the statement of Babulal is not trustworthy and cannot form basis of the impugned action and order.
6 2021 SCC OnLine Bom 13137 11 SP, J & RRN, J CEA_148_2006
15. The parties confined their arguments to the extent indicated above. We have bestowed our anxious consideration on rival contentions of the parties and perused the record. FINDINGS:-
16. Before dealing with rival contentions, it is apposite to reproduce Section 9D of the Excise Act, which reads as under:
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 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 proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court.
(Emphasis Supplied)
17. So far Section 9D (1) (a) of the Excise Act is concerned, it has no application in the instant case. Sub-section (1) (a) can be 12 SP, J & RRN, J CEA_148_2006 pressed into service (a) when person who had given the statement is dead, (b) when he cannot be found, (c) when he is incapable of giving evidence, (d) when he is kept out of the way by the adverse party and (e) when his presence cannot be secured without an amount of delay or expense, which officer considers unreasonable. In the considered opinion of this Court, this provision is based on doctrine of necessity. Admittedly, in the instant case, sub-section 1 (a) of Section 9D of the Excise Act has no application.
18. This case revolves around the interpretation and application of Section 9D (1) (b) of the Excise Act. It is pertinent to remember that learned counsel for the appellant has taken pains to highlight that the word 'prosecution' is employed in Section 9D and therefore, it cannot be stretched to be applied on 'adjudication proceedings'. The argument at the threshold appears to be attractive but lost much of its shine when examined minutely with the aid of various judgments. The Punjab and Haryana High Court in G-Tech Industries (supra) held as under:
"19. Clearly, if this procedure, which is statutorily prescribed by plenary Parliamentary legislation, is not followed, it has to be regarded, that the Revenue has given up the said witnesses, so that the reliance by the Commissioner of Central Excise, on the said statements, has to be regarded as misguided, and the said statements have to be eschewed from consideration, as they would not be relevant for proving the truth of the contents thereof. 13
SP, J & RRN, J CEA_148_2006
21. That adjudicating authorities are bound by the general principles of evidence, stands affirmed in the judgment of the Supreme Court in Commissioner of Customs v. Bussa Overseas Properties Ltd., (2007) 216 ELT 659 (SC), which upheld the decision of the Tribunal in Bussa Overseas Properties Ltd. v. Commissioner of Customs 2001 (137) ELT 637 (Trib._Mum)).
22. It is clear, from a reading of the Order-in-original dated 04.04.2016 supra, that Respondents No.2 has, in the said Orders-in-Original, placed extensive reliance on the statements, recorded during investigation under Section 14 of the Act. He has not invoked clause (a) of sub-section (1) of Section 9D of the Act, by holding that attendance of the makers of the said statements could not be obtained for any of the reasons contemplated by the said clause. That being so, it was not open to Respondent No.2 to rely on the said statements, without following the mandatory procedure contemplated by clause (b) of the said sub-section. The Orders-in-Original, dated 04.04.2016, having been passed in blatant violation of the mandatory procedure prescribed by Section 9D of the Act, it has to be held that said Orders-in- Original stand vitiated thereby."
(Emphasis Supplied)
19. The Division Bench of Jharkhand High Court in Bihar Foundry & Casting Ltd., v. CCE 7 opined as under:
" The person summoned is bound to state the truth as there is a threat of prosecution since such enquiry is deemed to be a "judicial proceeding" within the meaning of Section 193 and 228 of the Penal Code, 1860. However, such statements recorded before a Gazetted Central Excise Officer during inquiry or investigation would be relevant only after the statement is admitted in evidence in accordance with the procedure prescribed under Section 9D (1)(b). The rigors of this procedure is exempted only in case in which one or more of the handicaps referred to in clause (a) of Section 9D (1) would apply. The 7 2022 SCC OnLine Jhar 165 14 SP, J & RRN, J CEA_148_2006 proceedings for recording of the statements during search and seizure operation under C.E.A. 1944 are quasi criminal in nature because it results in imposition of not only duty but also a penalty and in some cases, it may also lead to prosecution. Therefore the statement recorded before a Gazetted Central Excise officer during inquiry or investigation, would be relevant only after the statement is admitted in evidence in accordance with the procedure prescribed under Clause (b) of Section 9D(1). The rationale behind the precaution contained in Section 9D (1) (b) is obvious as the statement recorded during inquiry/investigation by the Gazetted Central Excise Officer has every chance of having been recorded under coercion or compulsion. Therefore, the provisions contained in Section 9D have to be construed strictly and held as mandatory and, non-compliance would result in rendering the statement as irrelevant piece of evidence that cannot be used by the Adjudicating Authority to arrive at its finding. (See: Flevel International v. Commissioner of Central Excise, [(2016) 332 ELT 416 (Del.) Para 40-46); Jindal Drugs Pvt. Ltd. v. Union of India, [(2016) 340 ELT 67 (P & H), para 9 to 25]; High Tech Abrasives Ltd. v. Commissioner of C. Ex. & Cus, Raipur, [(2018) 362 ELT 961 (Chhattisgarh) Para 9.3- 9.5 and Ambika International v. Union of India, [(2018) 361 ELT 90 (P & H) Para 17 to 28]. Para 23, 24, 25 and 27 thereof."
(Emphasis Supplied)
20. The Chhattisgarh High Court in High Tech Abrasives Ltd., v. Commissioner of C.Ex.&Cus., Raipur 8 held as under:
"A rational, logical and fair interpretation of procedure clearly spells out that before the statement is treated relevant and admissible under the law, the person is not only required to be present in the proceedings before the adjudicating authority but the adjudicating authority is obliged under the law to examine him and form an opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. Therefore, we would say that even 8 (2018) 362 ELT 961 (Chattisgarh) 15 SP, J & RRN, J CEA_148_2006 mere recording of statement is not enough but it has to be fully conscious application of mind by the adjudicating authority that the statement is required to be admitted in the interest of justice. The rigor of this provision, therefore, could not be done away with by the adjudicating authority, if at all, it was inclined to take into consideration the statement recorded earlier during investigation by the Investigation officers. Indeed, without examination of the person as required under Section 9D and opinion formed as mandated under the law, the statement recorded by the Investigation Officer would not constitute the relevant and admissible evidence/material at all and has to be ignored. We have no hesitation to hold that the adjudicating officer as well as Customs, Excise and Service Tax Appellate Tribunal committed illegality in placing reliance upon the statement of Director Narayan Prasad Tekriwal which was recorded during investigation when his examination before the adjudicating authority in the proceedings instituted upon show cause notice was not recorded nor formation of an opinion that it requires to be admitted in the interest of justice."
(Emphasis Supplied)
21. A conjoint reading of these judgments, more particularly, the judgment of Jharkhand High Court in Bihar Foundry & Casting Ltd's (supra) makes it clear that the statement recorded by the Gazetted Central Excise Officer during enquiry or investigation is in a quasi criminal proceeding. In this view of the matter, the word 'prosecution' needs to be understood. The proceeding may lead into imposition of penalty. In some cases, it may also result into 'prosecution'. We are in respectful agreement with the view taken by Division Bench of Jharkhand High Court in Bihar Foundry & Casting Ltd. (supra). Thus, we are unable to persuade ourselves with the line of argument of revenue that because of use 16 SP, J & RRN, J CEA_148_2006 of the word 'prosecution' in Section 9D of the Excise Act, the requirement of producing evidence in adjudication proceeding can be done away with.
22. The Bombay High Court in Ciabro Alemao (supra) has framed question which reads thus:
"(b) Could the Tribunal legitimately have relied on Section 138B of the Customs Act and applied to it departmental adjudication proceedings when the section specifically and clearly applies only to prosecution for offences under the Customs Act?"
23. It was rightly highlighted that Section 138(B) of the Customs Act is almost analogous to Section 9(D) of the Excise Act. Section 138(B) reads as under:
138B. Relevancy of statements under certain circumstances.--
"(1) A statement made and signed by a person before any gazetted officer of customs 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 1. Subs. by Act 36 of 1973, s. 8, for ―under clause (i) of section 135‖ (w.e.f. 1-9- 1973). 2. Ins. by s. 9, ibid. (w.e.f. 1-9-1973). 106 (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 proceeding 17 SP, J & RRN, J CEA_148_2006 under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court.]"
24. After considering this provision, the findings are recorded in para No.44, which reads thus:
"..material witnesses not produced for cross-examination, through asked for, amounts to a clear breach of natural justice. In Union of India v. TR Varma {(1958) 1 SCR 499} the Court held:
" it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them."
(Emphasis Supplied)
25. In para Nos.57 and 58 of above judgment in clear terms, it was held that Section 138(B) of the Customs Act applies to 'prosecution' as well as 'departmental adjudication proceedings'.
26. Justice Dipankar Datta (as His Lordship then was) speaking for the Division bench in case of Prakash Raghunath Autade (supra) while considering Section 9D of the Excise Act poignantly held:
"13. In such view of the matter, we dispose of this writ petition with the following order:
(a) to (c)...
(d) if in the course of adjudication proceedings before the relevant authority any witness is summoned in terms of the power conferred by section 14 of the Act and his statement is recorded and found relevant, such 18 SP, J & RRN, J CEA_148_2006 statement shall not be relied upon against the petitioner unless he has been given suitable and reasonable opportunity to cross examine such witness;
(e) the evidence of the witness, as above, shall be recorded in the presence of the petitioner; and
(f) based on the evidence and other materials on record, the relevant authority shall proceed to pass a final order in accordance with law."
(Emphasis Supplied)
27. Apart from this, in State of Mysore v. S.S.Makapur 9, the Apex Court (Constitution Bench) ruled that the purpose of an examination in the presence of a party against whom an enquiry is made, is sufficiently achieved, when a witness who has given a prior statement is recalled, the statement is put to him, and made known to the opposite party, and the witness is tendered for cross-examination by that party.
28. In the light of aforesaid judgments, it is clear like noon day that the incriminating material/statements recorded behind the back of the petitioner cannot be used against him, unless, such witnesses are produced in adjudication proceedings and they were permitted to be cross-examined by the petitioner.
29. The judgment of Kalvert Foods India Private Limited (supra) on which heavy reliance is placed by learned Standing 9 AIR 1963 SC 375 19 SP, J & RRN, J CEA_148_2006 Counsel for the appellant is of no assistance for twin reasons:- i) in the said judgment, there is no discussion or analysis in the light of Section 9D of the Excise Act. ii) para No.25 of the said judgment shows that the Managing Director voluntarily came forward to sort out the issue and paid excise duty to the tune of Rs.11.00 lakhs on different dates. The said act of Managing Director was treated to be of 'confessional act/statement'. There is no similar situation present in the instant matter. The facts of case cannot be a binding precedent. What is binding precedent is the ratio decidendi of a matter (see Ram Prasad Sarma v. Mani Kumar Subba {2003 (1) SCC 289}, Rekha Mukherjee v. Ashis Kumar Das {2005 (3) SCC 427}, Jayant Verma v. Union of India {2018 (4) SCC 743} and Shanti Bhushan v. Supreme Court of India {2018 (8) SCC 396}). A peculiar different fact or a different legal provision may make a world of difference. (See Bhavanagar University v. Pallitana Sugar Mills Pvt Ltd {2003 (2) SCC 111}). As rightly highlighted by respondent the so called confession statement of Babulal does not inspire confidence. The adjudicating authority himself found the discrepancy, which was rightly highlighted by learned counsel for the respondent. For same reason, the statement of Managing Partner cannot be 20 SP, J & RRN, J CEA_148_2006 treated as 'confessional' statement. Para S.5.1 of order of adjudicating authority is self explanatory.
30. So far the question of tallying the signature of Babulal based on the report of Government Examiner for questioned document is concerned, even if it is found to be correct, the said report only proves the signature of Babulal on the document and not the contents thereof. The Bombay High Court, way back in Sir Mohammed Yusuf v. D 10, opined that the proof of signature on a document does not mean that the contents are also true. The Supreme Court in Joseph John Peter Sandy v. Veronica Thomas Rajkumar 11 opined as under:
"In view of the law referred to hereinabove, it is crystal clear that even though the document may be admissible, still its contents have to be proved and in the instant case, as the appellant did not examine either the attesting witnesses of the document, nor proved its contents, no fault can be found with the judgment [(2004) 1 MLJ 301] impugned before us."
(Emphasis Supplied)
31. In this view of the matter, it can be safely concluded that even if the signature of Babu Lal was tallied pursuant to the report of Government examiner that will not establish that contents of the statement are also proved. The other judgment cited by learned Standing Counsel for the appellant in the case of 10 1961 SCC OnLine Bombay 5 11 (2013) 3 SCC 801 21 SP, J & RRN, J CEA_148_2006 D. Bhoormall (supra) cannot be pressed into service in a case of this nature. The said case is founded upon totally different facts and different statute.
32. In view of foregoing discussion, substantial questions must be answered in favour of the respondent. We answer it accordingly and hold that in the teeth of Section 9D (1) (b) of the Excise Act, unless, the incriminating material and witnesses are produced in the adjudication proceedings and are permitted to be cross-examined by the assessee, the said incriminating material cannot be used against the assessee. Thus, Appeal fails and is hereby dismissed. There shall be no order as to costs. Interlocutory applications, if any pending, shall stand closed.
_______________________ JUSTICE SUJOY PAUL ____________________________________________ JUSTICE NAMAVARAPU RAJESHWAR RAO Date: 22.10.2024 Note:
L.R. copy be marked.
B/o.GVR/MYK/NVL