2023 (10) TMI 245 - AT - Customs

Tribunal Orders Denovo Adjudication in Smuggling Case, Commissioner Complies with Remand Directions

The Tribunal ordered denovo adjudication due to non-supply of documents and denial of cross-examination rights in a smuggling case involving computer ... Smuggling - non-supply of documents - denial of the right of cross-examination - seeking to remand the case to the jurisdictional Commissioner of Customs for fresh decision after supply of documents relied upon - HELD THAT:- The learned Commissioner of Customs (Adjudication) while taking up the case in denovo adjudication had categorically mentioned about how he had gone ahead with ensuring provision of various documents sought by the parties from the department and cross examination of witnesses, keeping in view of the directions given by the Tribunal. He had recorded in the impugned order about the various documents provided by the DRI investigation to Shri Deepak Dialani through his advocate and few of the documents which could not be produced; he had also fixed up various dates for cross examination of all 17 witnesses, however could record the proceedings of cross examination conducted before him only in 4 cases, as others did not turn up. Thereafter, the learned Commissioner (Adjudication) has gone into the facts of the case, evidences available on record, and all the four cross examination record of the witnesses. He had also made clear that in view of the Hon’ble Supreme Court’s judgement in the case of Gopal Saran Vs. Satyanarayana [1989 (2) TMI 415 - RAJASTHAN HIGH COURT], that evidences of those persons who were not made available for cross examination not being treated as evidences, as if such evidences simply does not exist, the statements and panchnamas of remaining persons whose cross examination could not be conducted before him, he had completely ignored and discarded those as evidence. From the net result of the cross examination of 4 witnesses and the non- availability of other witnesses, documents that have been produced during the proceedings, the learned Commissioner (Adjudication) had arrived at the conclusion that all the allegations based on the statements of these witnesses recorded under Section 108 of the Customs Act have to be discarded and the show cause notice proceedings has to be discharged as liable to withdrawn or dropped. Similarly, he dropped the show-cause notice dated 12.09.1997 in his other order dated 16.02.2009. On perusal of the impugned orders, it is found that denovo proceedings have been conducted in accordance with the law, abiding by the principles of natural justice duly giving opportunity for personal hearings, opportunity for cross examination and submission of documents/evidences by both the parties to the dispute. Further, various legal provisions regarding demand of duty, imposition of penalty have been examined by the learned Commissioner (Adjudication) on the basis of evidences after examining the burden of proof under Section 123 ibid. The impugned orders do not require any interference - the appeals filed by the Revenue are dismissed. 1. ISSUES PRESENTED AND CONSIDERED Whether the orders of the Commissioner (Adjudication) in the de novo proceedings complied with the Tribunal's remand directions regarding supply of documents and opportunity for cross-examination, and whether those orders discharging/dropping the show cause notices are sustainable in law. Whether statements and panchnamas recorded under Section 108 of the Customs Act, which could not be subjected to cross-examination as directed, could be treated as evidence or had to be discarded in the adjudication. Whether the burden of proof as provided under Section 123 of the Customs Act shifted to the noticee in respect of the alleged smuggled goods, and whether the adjudicating authority correctly applied that burden in arriving at the conclusion to drop the proceedings. Whether there was any infirmity in the finding that the noticee was not the importer/owner of the alleged goods and consequently not chargeable to duty. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Compliance with Remand Directions (supply of documents and cross-examination) Legal framework: Principles of natural justice and de novo adjudication upon remand require that documents relied upon by the department be supplied to the noticee and that persons whose statements are relied upon be made available for cross-examination; Tribunal's directions on remand must be given effect to. Precedent treatment: The impugned adjudicator expressly followed the Tribunal's remand direction and relied upon the Supreme Court precedent (Gopal Saran v. Satyanarayana) treating non-cross-examined statements as not acting as evidence against the accused. Interpretation and reasoning: The adjudicating officer recorded steps taken to supply documents and to summon witnesses, noted which documents were provided and which were not producible, fixed multiple dates for cross-examination and conducted cross-examination of four witnesses who attended; the remaining 13 summoned witnesses did not appear despite summons and opportunities. Applying the Apex Court's criterion, the adjudicator ignored and discarded the untested statements/panchnamas as evidence rather than treating them as proof against the noticee. Ratio vs. Obiter: Ratio - a remand order must be implemented by supplying documents and permitting cross-examination; where witnesses are not produced despite summons and opportunity, their statements cannot be treated as evidence. Obiter - observations on delay in supplying some documents over years (though relevant to fairness) are ancillary. Conclusions: The adjudicator complied substantially with remand directions by supplying available documents, summoning witnesses, permitting and conducting cross-examination where possible, and appropriately disregarding untested statements; therefore the de novo proceedings met the remand requirements and principles of natural justice. Issue 2 - Treatment of Statements under Section 108 when cross-examination is not conducted Legal framework: Section 108 statements are subject to the evidentiary principle that statements not subjected to cross-examination cannot be relied upon to the prejudice of a party; judicial precedents (including the cited Supreme Court authority) hold that such statements are to be treated as if they do not exist for purposes of proof against the accused. Precedent treatment: The adjudicator followed the cited Supreme Court decision and Tribunal's prior direction, treating the statements of persons not produced for cross-examination as non-evidentiary; cross-examination that was conducted revealed contradictions undermining those statements. Interpretation and reasoning: Where only four of seventeen witnesses were subjected to cross-examination, and the recorded cross-examinations exposed contradictions and lack of knowledge relevant to the alleged smuggling rackets, the adjudicator concluded that the statements under Section 108 lacked credibility and could not sustain the allegations. The adjudicator therefore discarded the untested statements and relied on the tested record to assess the sufficiency of proof. Ratio vs. Obiter: Ratio - untested Section 108 statements cannot be used to found a demand or penalty where the remand ordered cross-examination was not effected; findings based on such discarded statements are unsustainable. Obiter - detailed factual observations on each witness's contradictions serve evidential clarification but are supportive rather than foundational legal propositions. Conclusions: The adjudicator correctly applied the legal principle that untested Section 108 statements are not admissible proof against the noticee; the remaining tested evidence did not establish the allegations, justifying dismissal of proceedings dependent on the discarded statements. Issue 3 - Burden of proof under Section 123 and applicability to alleged smuggled goods Legal framework: Section 123 (and related provisions) shifts or clarifies the evidentiary burden in certain customs matters; the adjudicator examined whether the goods in question fell under notifications that would shift the burden and considered the standard statutory burden of proof for confiscation/duty/penalty. Precedent treatment: The adjudicator applied established legal tests and prior Tribunal decisions regarding when the burden of proof shifts to the noticee and when the department must make out prima facie case; the Tribunal in its review accepted that this statutory burden analysis had been properly considered. Interpretation and reasoning: The adjudicator found that the alleged computer parts were not covered by notifications under Section 123 or Section 11B that would place any special onus on the noticee; consequently the department retained the burden to prove that goods were imported/smuggled and liable to confiscation/duty. Given the dismissal of key statements and the contradictions revealed in tested witness evidence, the department failed to sustain that burden. Ratio vs. Obiter: Ratio - absent applicable notifications shifting the burden, the department must prove smuggling/ownership/importer status; inability to discharge that burden requires dropping the show cause notice. Obiter - remarks on the non-applicability of specific notifications are factual applications to the case. Conclusions: The adjudicator correctly assessed that Section 123/11B did not impose a reverse burden in this matter; because the department failed to discharge the ordinary burden of proof after discounting untested statements, the demand and penalty claims could not be sustained. Issue 4 - Findings on importer/ownership status and chargeability to duty Legal framework: Liability to duty and penalties depends on establishing importership/ownership or other statutory bases for chargeability; mere association or allegations without evidentiary proof are insufficient. Precedent treatment: The adjudicator aligned with Tribunal authority that a person cannot be saddled with duty absent proof of importership/ownership or other statutory nexus proving chargeability. Interpretation and reasoning: The adjudicator noted absence of evidence showing the noticee was the importer or owner of the imported goods; cross-examination showed lack of links alleged by the department. On this factual and legal corpus, the adjudicator concluded the noticee was not chargeable to duty. Ratio vs. Obiter: Ratio - without proof of importer/owner status or other statutory nexus, a person cannot be held liable for duty/penalty in smuggling allegations. Obiter - case-specific factual inferences about business practices are explanatory. Conclusions: The adjudicator's finding that the noticee was not the importer and hence not chargeable to duty is legally sustainable on the evidence considered after discarding untested statements; the subsequent withdrawal/dropping of proceedings was warranted. Collective Conclusion and Tribunal's Disposition The Tribunal found that the de novo adjudication complied with remand directions, correctly applied the law on treatment of untested statements under Section 108, properly considered the burden of proof under Section 123/11B, and reached a legally sustainable conclusion that the department failed to prove importership/smuggling liability; accordingly, the appeals by the department were dismissed and the impugned orders dropping the show cause notices were upheld.