Page 149 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] PRINCIPAL COMMISSIONER OF CENTRAL TAX v. JAIN & COMPANY 539

who recorded the statements despite the fact that the same noticees had
confirmed their statements in their subsequent statements also recorded
under Section 14 of the Central Excise Act, 1944?
B. Whether the Learned Tribunal did not err in holding that the charge of
clandestine removal needed to be set aside since the same was based on
statements which did not bear the signatures of the officers recording those
statements despite the fact that the charge of clandestine removal was sus-
tainable in view of the various other corroborative and independent evi-
dences collected during the course of investigations such as kachhi parchis,
balance sheets and ledger statements?”
2. The Tribunal, while passing the impugned order has placed reliance
on the order passed by the Learned ACMM, while dealing with the bail applica-
tion of the accused in bail proceedings of Shri Pawan Kumar Jain, wherein the
Learned ACMM examined the file and noticed that several statements did not
bear the signatures of the Officer who recorded the same. The fact that certain
statements did not bear the signatures of Officer who recorded the same is not in
dispute. In fact, this submission had also been raised before the Adjudicating
Authority who dealt with the same in the following manner :
“59. The noticees have also argued that some of statements relied upon by
the Department in the impugned show cause notice do not bear the signa-
tures of the authorized officers of Central Excise. The noticees have further
argued that it has already been held in the various case laws that the state-
ments not recorded by the Gazetted Officers either under the Central Excise
or under the Customs Act are not admissible and cannot even be used
against any person. Therefore, reference and reliance on such statements, in
spite of there being a clear observation in the form of an order, in the inves-
tigations conducted in the present case and which were even examined by
Learned ACMM, observing about the statements not recorded before the
Gazetted Officer, needs to be demolished.
60. After carefully looking at the statements referred as above by the no-
ticees, it is seen that seven out of the thirteen statements referred as above
by the noticees indicate that these have been recorded before a Central Ex-
cise officer. Out of the remaining statements also it is observed that state-
ment dated 7-1-2010 of Shri Pawan Kumar Jain which was in response to
the summons dated 14-12-2009 has been seen and admitted again in the
statement dated 12-4-2010 (which has been tendered before a Central Excise
officer). Similarly vide letter dated 31-8-2010 addressed to the Superinten-
dent Central Excise Delhi- I, Shri Sunil Kathuria has stated that he has erro-
neously mentioned the date as 26-2-2010 and that it should be read as 26-3-
2010. He has nowhere mentioned in that letter that his statement was never
recorded before a proper Central Excise officer. The remaining two state-
ments (statement dated 31-8-2010 of Shri Vazir Singh and statement dated
10-9-2010 of Shri Naresh Jain) said to be not bearing signatures of any Cen-
tral Excise officer have in fact not been relied upon in the impugned show
cause notice. Moreover it is not the case of the noticee firms that the state-
ments were recorded by a Central Excise officer other than an officer au-
thorized under Section 14 of the Act ibid. Thus I do not find force in the ar-
gument of noticees that all the above referred statements should be treated
as not having been recorded under Section 14 of the Act ibid.
EXCISE LAW TIMES  15th May 2020  149