Page 106 - ELT_3rd_1st May 2020_Vol 372_Part

328 EXCISE LAW TIMES [ Vol. 372
18. In the instant case, there is no specific case for the Appellant-
Assessee before the Adjudicating Authority or before the Commissioner (Ap-
peals) or even before the Tribunal that the statement was obtained under ‘duress
or coercion’ from the Director or from the other persons/witnesses concerned,
though, a vague averment has been made in this regard in the present appeal
before this Court. If such a case was actually raised before any of the authorities
as above and if the same was not considered by the Authority/Tribunal con-
cerned, it was for the Assessee to have the mistake brought to the notice of the
Authority/Tribunal concerned. It was with reference to the above vital
fact/pleading, as to the element of ‘duress/coercion’, that the matter was exam-
ined by this Court in Hi Tech Abrasives Ltd. (supra) more so, when there was no
other evidence, but for the entries in the ‘note book’; in turn leading to the inter-
ference. This is more evident from the observations made in paragraph 9.5, with
reference to the verdict passed by the Apex Court in Commissioner of Central Ex-
cise v. Kalvert Foods India Private Limited; 2011 (270) E.L.T. 643 (S.C.) [as sought to
be relied on from the part of the Revenue] holding that the judgment passed by
the Apex Court accepting the statement given in evidence was based on its own
facts as revealed from ‘paragraph 19’ of the judgment. The observation of the
Apex Court in ‘paragraph 19’ as aforesaid is relevant in this case as well and
hence, it is reproduced as below :
“19. We are of the considered opinion that it is established from the rec-
ord that the aforesaid statements were given by the concerned persons out
of their own volition and there is no allegation of threat, force, coercion, du-
ress or pressure being utilized by the officers to extract the statements
which corroborated each other. Besides the Managing Director of the Com-
pany of his own volition deposited the amount of Rs. 11 lakhs towards ex-
cise duty and therefore in the facts and circumstances of the present case,
the aforesaid statement of the Counsel for the Respondent cannot be ac-
cepted. This fact clearly proves the conclusion that the statements of the
concerned persons were of their volition and not outcome of any duress.”
19. Coming back to the case in hand, as mentioned already, there was
no proper pleading of ‘threat/force/duress/coercion or pressure’ as being uti-
lized by the officers of the Revenue to extract the statements. On the other hand,
statements were given by the persons concerned on their own volition. This be-
ing the position, the alleged violation of Section 9D of the Act, 1944 is not at all
attracted and the position stands more covered by the ruling rendered by the
Apex Court, as extracted just above. Hence, there is nothing wrong on the part of
the Adjudicating Officer/Appellate Authority or the Tribunal in having accepted
the statements given by various persons including the Director of the Appel-
lant/Assessee-Company to reach the conclusion.
20. It will be worthwhile to make a reference to Section 9D of the Act,
1944 as well, to understand the real scope and extent of the provisions and hence,
it is extracted below :
“9D. Relevancy of statement 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 ob-
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