2019 (8) TMI 142 - AT - Customs

Tribunal decision: Appeal partly allowed, remanded for cross-examination. Some statements deemed confessions not needing cross-examination.

The Tribunal partly allowed the appeal, remanding the case for cross-examination consent from certain witnesses. It upheld the denial of cross-examination ... Principles of natural justice - denial of cross examination of the impugned witnesses - import of goods - valuation - inclusion of royalty - collusion with the overseas suppliers and fabrication of documents - violation of Section 9D of Central Excise Act, 1944/138 of Customs Act, 1962 - HELD THAT:- Section 9D of CEA deals expressly with the circumstances in which a statement recorded before a Gazette Officers can be treated as relevant for the purposes of proving the truth of contents thereof. What is categorically required by the Section is that the person whose statement was earlier recorded before Gazette Officer has to be examined as witness before the adjudicating authority who thereafter has to arrive at an opinion that having regard to the circumstances of the case the statement should be admitted in evidence in the interest of justice - It is only after both these steps are complied with that the statement would be eligible for being treated as relevant in the proceedings so that the assessee can if it so chooses exercise the option to test the evidence by way of cross examination. The said right is otherwise permitted under Section 138 of the Indian Evidence Act, 1932. Whether the statements of the persons as are prayed to be cross examined qualify to be called as statement simplicitor? - HELD THAT:- The statements even if retracted can form the basis of conviction without examination of the persons making confessions in the manner as mentioned under Section 9D of Excise Act/138 of the Indian Evidence Act. When the confession of co-accused/ co-noticee can be used as evidence under Section 3 of the Evidence Act? - HELD THAT:- Since the statement of the Directors of the Company are opined to be in the form of confessions, the Directors are none but those who have stepped into the shoes of the accused Company. Otherwise also, they themselves are co-noticees and the imposition of penalty has been proposed against them - the fundamental right as enshrined under Article 20(3) of the Constitution of India which prohibits self incrimination is applicable to both of them. The confessional statements are out of the ambit of Section 9D as relied upon by the appellant and as has been considered in the various case laws relied upon by the appellant. The co-noticee, if his statement amounts to confession, cannot be compelled to be cross examined and there would be no violation of principles of natural justice in that case. Though ample opportunity with the proceede/assessee has to be granted to put forth his defence, however, the assessee cannot be compelled to self-incriminate himself - the permission for cross examining Shri Vineet Saluja and Shri Pradeep Sharma has rightly been denied. Appeal allowed by way of remand directing adjudicating authority below to seek the consent of Ms. N. Rashmi and Shri Amit Mallik qua their willingness to be cross examined and to accordingly re-decide the issue of cross examination of said two witnesses, afresh. Issues Involved:1. Denial of cross-examination of witnesses.2. Applicability of Section 9D of the Central Excise Act, 1944/Section 138 of the Customs Act, 1962.3. Principles of natural justice.4. Admissibility of confessional statements.Detailed Analysis:1. Denial of Cross-Examination of Witnesses:The appellant contested the denial of cross-examination of four individuals whose statements were recorded during the investigation. The appellant argued that cross-examination is essential for the statements to be relevant and admissible as evidence, as per principles of natural justice and Section 9D of the Central Excise Act, 1944, which is analogous to Section 138 of the Customs Act, 1962. The Department countered that cross-examination is not required in every case, especially when the statements are confessions made to Customs officers, who are not police officers.2. Applicability of Section 9D of the Central Excise Act, 1944/Section 138 of the Customs Act, 1962:Section 9D specifies the conditions under which statements made before a Gazette Officer can be treated as relevant for proving the truth of their contents. The Tribunal noted that for a statement to be admissible, the person who made the statement must be examined as a witness before the adjudicating authority, which then decides whether the statement should be admitted in the interest of justice. This process allows the assessee to cross-examine the witness, as per Section 138 of the Indian Evidence Act, 1932.3. Principles of Natural Justice:The Tribunal referred to various case laws to determine whether the denial of cross-examination violated principles of natural justice. It concluded that formal cross-examination is not always required by natural justice principles. As long as the accused has a reasonable opportunity to comment on the evidence against them, the requirements of natural justice are met. The Tribunal cited the Supreme Court's decision in Kanungo & Co. Vs. Collector of Customs, which held that natural justice does not mandate formal cross-examination in every case.4. Admissibility of Confessional Statements:The Tribunal distinguished between statements simpliciter and confessional statements. It held that the statements of the Directors, being confessions, are admissible as evidence without the need for cross-examination under Section 9D. The Tribunal emphasized that the statements of the Directors, who are also co-noticees, are confessions on behalf of the appellant company and are admissible because they were made to Customs officers, not police officers. The Tribunal cited the Supreme Court's ruling in State of Punjab Vs. Barkat Ram, which upheld the admissibility of voluntary confessions made to Customs officers.Conclusion:The Tribunal partly allowed the appeal by remanding the case to the adjudicating authority to seek the consent of Ms. N. Rashmi and Shri Amit Mallik for their cross-examination. However, it upheld the denial of cross-examination of Shri Vineet Saluja and Shri Pradeep Sharma, ruling that their statements are confessions and do not require cross-examination under Section 9D or principles of natural justice. The Tribunal concluded that there was no violation of natural justice in denying the cross-examination of the Directors, as their statements were confessions and the accused cannot be compelled to incriminate themselves.