Page 107 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] N.R. SPONGE PVT. LTD. v. COMMISSIONER OF CENTRAL EXCISE, RAIPUR 329

tained without an amount of delay or expense which, under
the circumstances of the case, the Court considers unreasona-
ble; 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 opin-
ion that, having regard to the circumstances of the case, the
statement should be admitted in evidence in the interest of
justice.
(2) The provisions of sub-section (1) shall, so far as may be, apply in rela-
tion to any proceedings under this Act, other than a proceeding before a
Court, as they apply in relation to proceeding before a Court.”
21. The terminology used in Section 9D(1) of the Act, 1944 clearly re-
veals the enabling power of the Court to accept 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 the Act, 1944; to be relevant to the extent as
mentioned either in clause (a) or in clause (b). In other words, it is not a provision
vouched in a ‘negative sense’ to hold that the statement given by the person con-
cerned shall not be acceptable in evidence for the proceedings concerned. On the
contrary, it is in respect of the power and jurisdiction of the “court” to accept the
same as relevant. However, by virtue of sub-section (2) of Section 9D of the Act,
1944, such a course/power, as exercisable by the Court, is made applicable to
any other proceeding under the Act as well (other than a proceeding before a
Court) as they apply in relation to a proceeding before the Court. This clearly speaks
about the extent of applicability i.e. it can only be to the extent as related to a pro-
ceeding before the Court, as mentioned in sub-section (1), and never beyond.
22. The mandate is crystal-clear from sub-section (1) of Section 9D of
the Act, 1944 (to consider the extent and applicability). The statute makes it point
blank that, it is for the purpose of proving, in any prosecution for an offence under
the Act, before a Court. This clearly means that the statement given by a person
can be accepted as relevant by a Court in a ‘prosecution proceeding’ for an offence
either under clause (a) i.e. when the person who made statement is dead or can-
not be found or incapable of giving evidence or such other circumstances as
mentioned therein or under (b) i.e. when the person who made the statement is
examined as witness in the case before the Court, when the Court having regard to
the circumstances of the case, is of the opinion that the statement should be ad-
mitted in evidence in the interest of justice. To put it more clear, the rigor is more
with regard to the circumstance when it relates to a ‘prosecution for an offence’ un-
der the Act i.e. to punish the guilty. When sub-section (2) of Section 9D says that
the provisions of sub-section (1) shall apply ‘as far as may be’ in relation to any
proceedings under the Act other than a proceeding before a Court, as they apply
in relation to proceedings before the Court, it is explicitly clear that it can have ex-
tended application only in relation to an instance of inflicting the punishment for
the offence and not for the quantification of the duty or extent of evasion. In oth-
er words, fixation of duty evaded is one thing, and mulcting of penalty for the
offence in respect of such evasion is a different thing. When the statement not
recorded before the Adjudicating Authority cannot be relied upon to inflict pen-
alty, it may still govern the field (if supported by other materials to reach the
conclusion) insofar as fixation of quantum of duty evaded is concerned.
23. The aforesaid distinction is discernible also from the observation
made by the Bench of this Court in paragraph 9.5 of the verdict reported in Hi
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