subject: RELIVENCY OF STATEMENT DURING DEPARTMENTAL PROCEEDINGS [print this page] One thing which is commonly misunderstood in the departmental adjudication of Central Excise is that once a statement is recorded under Central Excise Act 1944 (hereinafter called Act) the same is admitted and no further corroboration is required. Undoubtedly the statement recorded under the act is relevant but before admitting the same into evidence certain safeguards are required as mentioned Sec 9D of the Act. Although wording of sec 9D of the Act is quite and unambiguous but despite this the confusion continues and adjudicating authorities without paying any heed to the mandatory requirement of law, keep on adjudicating the matter in a mechanical way and there by making the departmental Adjudication a worthless exercise. This paper is merely an attempt to clear the confusion regarding relevancy and admissibility of statement recorded during the process of investigation. Sec 9 D the Act Read as Follows:- Relevancy of statement under certain circumstance; - (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 facts which it contains;- (a)when the person who made the statement is dead or cannot be bound, 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 before a court, as they apply in relation to a proceeding before a court So, the above said section says that all the statement made and sign before any Central Excise officer during the course of any enquiry or proceeding shall be relevant for the purpose of proving any offence under the Act. If the above said section is analyzed following things emerged:- a) All the statement recorded and sign before a Gazetted officer of Central Excise are Relevant b) The Statement is relevant even if the person made the statement is dead or cannot be found or incapable of giving Evidence or Kept out of the way by adverse party or whose presence can not obtained without an amount of Expense or delay. Etc. c) The person made the statement is examined as a witness in the case before the court and Court having regard to the circumstances of the case form an opinion that statement should be admitted in evidence in the interest of justice. d) The provision of Sec 9 D (1) shall be applicable in relation to any proceeding under the act. So, one thing is clear that in order to invoke Sec 9 D of the Act, the court or the adjudicating Authority has to form an opinion regarding admissibility of the statement recorded under this Act despite the relevancy of the statement. The Section mandates the that the reason has to recorded about admissibility or non admissibility of the statement recorded under the Act, Particularly when the assessee or noticee demands Cross examination of a particular person whose statement under this Act has been recorded. The Division Bench of Honble High court of Delhi in a recent judgment J & k cigarettes Ltd Vs CCE [2009(242) ELT 189] While deciding the constitutionality of Sec 9D of the Act has held that Sec 9D of the Act is a valid law which does not encroach the fundamental right of a Citizen but held that at time of invoking Sec 9 D of the Act the authorities are required to take certain safety measure. The court observes certain safeguard which are as follow:- (i) We are of the opinion that the provisions of section 9D (2) of the Act are not unconstitutional or ultra vires; (ii) While invoking section 9D of the Act, the concerned authority is to from an opinion on the basis of material on record that a particular ground, as stipulated in the said section, exists and is established; (iii) Such an opinion has to be supported with reasons; (iV) before arriving at this opinion, the authority would give opportunity to the affected party to make submissions on the available material on the basis of which the authority intends to arrive at the said opinion; and (V) It is always open to the affected party to challenge the invocation of provisions of section 9D of the Act in a particular case by filling statutory appeal, which provides for judicial review. Departmental Adjudication are meant and intended to be a impartial and it has to be conducted with At most care and in most transparent manner. Ambiguity in the system creates confusion which ultimately creates mistrust, which hampers the growth of the institution. When an officer act for the Department he must be acting in different capacity but when the same officer sits in adjudication he is suppose to shed his loyalty towards the parents organization. For the same officer there is a distinct and clear line of demarcation for discharging the two official functions, the line is thin bit is conspicuous but unfortunately for the adjudicating authority sometimes this line is blurred and shockingly enough, many a times it is felt that the adjudicating authority is acting behalf of the department. It is common practice during an adjudication that the adjudicating authority gladly and blindly accept the statement made during the investigation which corroborate the case of the revenue but very conveniently brush aside the statement recorded at the time of cross examine saying that these are after thought or the assessee has win over the witnesses. In a very interesting case I appear before an adjudicating authority made an request for cross examination of panch witness, for a couple of occasions the punch witness did not turn up and when he came then deposed that he did not participated in the investigation and he sign the panchnama in the office of investigating officer itself. In a way clearly no panchnama was drawn at the time of alleged occurrence but the adjudicating authority at the time of adjudication observe that since the panch witness maintain his silence for a long period so his denial in the cross examination has no bearing in the case. What the learned adjudicating authority forgot is the mandate of Sec 9 D of the Act which clearly says that the adjudicating authority is required to from an opinion regarding admissibility of statement once the person who has made the statement is examine as a witness in the proceeding. As stated above the mandate of Sec 9 D of loud and clear i.e before admitting a statement recorded during the proceeding the adjudicating authority will have to form an opinion and that opinion must be based on the legal sound principles. In adjudication there is dispute between the assessee or noticee and the department and the adjudicating authority acts as panch between the two, and panch is regarded as Parmeshwar so we can hope and expect that the adjudication in the department will proceed in a most transparent and fair manner for which adopting sec 9 D in its letter and spirit is a sin-a-qua-non.
RELIVENCY OF STATEMENT DURING DEPARTMENTAL PROCEEDINGS
By: Prabhat Kumar (Advocate)
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