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Bhagwati Traders vs. Commissioner, CGST and Central Excise - (Customs, Excise and Service Tax Appellate Tribunal) (06 Jan 2022)

Provisions of Section 9D of the Central Excise Act, 1944 are mandatory in nature and have to be followed by the Adjudicating Authority, the absence of which vitiates the adjudicating process



The Appellant is a trader of Iron & Steel products and is engaged in purchase and sale of CTD/TMT bars. According to the Department, present is a case of clandestine removal of CTD/TMT bars from the premises of the Appellant, which were received by him without invoices and without payment of Central Excise duty, with the intention to evade payment of Central Excise duty during the period 2011-12 and 2012-13 which was unearthed during a search conducted in the premises of the Appellant in the month of February, 2013 by the Central Excise Officers.

The Adjudicating Authority vide Order-in-Original confirmed the demand of duty against Swastik Steels and imposed penalty of Rs.3 lakhs on the Appellant and of Rs.2,000 on the broker i..e Sai Deva Steels who helped the appellant to purchase the CMD/ TMT bars from Swastik Steels. On Appeal being filed by the Appellant, the learned Commissioner vide impugned order rejected the same and upheld the order of the adjudicating authority imposing penalty of Rs.3 lakhs on the Appellant.

The preliminary issue raised by the learned counsel is that, the provisions of Section 9D of the Central Excise Act have not been followed by the Adjudicating Authority, which are mandatory in nature, the absence of which vitiates the adjudicating process and a prayer was made for remanding the matter to the Adjudicating Authority for denovo adjudication.

A plain reading of Section 9D(i) of the Act makes it clear that clauses (a) and (b) therein set out the circumstances in which a statement made and signed by a person before the Central Excise Officer of a gazetted rank, during the course of inquiry or proceeding under the Act, shall be relevant, for the purpose of proving the truth of the facts contained therein. The use of the word 'shall' in the said section makes it clear that, the provisions contemplated in the said sub- section are mandatory. It means that the procedure prescribed in Section 9D(i) of the Act has to be followed mandatorily in the adjudication proceedings and if without following the procedure stated therein, the adjudicating authority relies upon the statements recorded during investigation then it vitiates the adjudication process. Either the adjudicating authority follow the procedure prescribed in Section 9D of the Act or if it is not possible to follow then to discard those statements.

So far as clandestine removal cases are concerned, mainly they are based on the statements/evidences recorded during the course of investigation. Although in the instant case, opportunities were granted by the adjudicating authority to the appellant but they chose not to participate in the proceeding. Justice must not only be done, but must also be seen to be done. When the legislature has laid down a procedure to be followed then it has to be done in that way only and no shortcut can be adopted. Therefore, present Tribunal deems it proper to set aside the impugned order and remand the matter back to the adjudicating authority for de novo adjudication after giving an opportunity of hearing to the appellant. Appeal is accordingly disposed of.


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