2025 (9) TMI 1534 - AT - Central Excise

Appeal allowed where tax authority relied on uncorroborated allegations, belated evidence, and denial of fair hearing rights

CESTAT allowed the appeal, finding the department's case rested on assumptions and uncorroborated allegations of illicit clearance of imported polyester ... 100% EOU - illicit clearance of goods into DTA for cash payment - allegation of the department is based on assumptions and presumptions - imported Polyester Yarn (PFY/POY) cleared clandestinely not supported with any corroborative evidence - examination relied upon without proper examination - violaton of principles of natural justice. HELD THAT:- The matter pertains to the year 2000 and after 25 years, it appears that the case has not progressed as was required as per law. In the first round of litigation, this Bench of the Tribunal vide Order No. A/11552- 11554/2013 dated 15.11.2013 had asked both sides to co-operate. The department was directed to give opportunity of hearing to the appellants before deciding the issues a fresh in de novo proceedings and afford all the relied upon documents or their inspection to the appellant. It appears that the adjudicating authority had directed the appellant to obtain relied upon document from DRI regional unit, Surat. The DD DRI it is on record vide letter dated 4th January, 2016 (i.e. 3 years after remand order) copies of the relied upon documents as were mentioned in Para 30 of the show cause notice dated 28.02.2004. The relied upon documents if were forwarded by DRI on 4th January, 2016, how the date could be fixed for hearing on 5th January, 2016 by the adjudicating authority without even affording time for the forwarded documents to be received. Further fixing three successive hearing on 05.01.2016, 12.01.2016 and 19.01.2016 after such small intervening period is a blatant attempt to deny party effective defense and that too after 3 years of this Tribunal’s decision which had inter alia directed matter to be decided in a time bound manner. The order was passed on 18.02.2016 taking cognisance of post hearing letter of D.R.I dated 14.02.2016 that no one had come to collect documents, which are stated to be supplied on 4th January, 2016. The ex-parte decision in this factual matrix was therefore clearly indefiance of directions of this Tribunal. The appeal is allowable on this ground alone with answerability of the mechanism that does not act on Tribunal’s time bound decisions for 3 years and then does it only haphazardly. However, on merits too from the decision of the Hon’ble High Court and of this Tribunal in the submission of the appellant especially the decision of Hon’ble Supreme Court in State of Bihar Vs. Radha Krishna Singh [1983 (4) TMI 233 - SUPREME COURT] as also in the case Basudev Garg vs. Commissioner of Customs [2013 (5) TMI 350 - DELHI HIGH COURT] which mandates the cross-examination as a pre requisite before relying upon the statement against assessee as well as the decision in Para- 16 of G-Tech Industries Vs. Union of India [2016 (6) TMI 957 - PUNJAB & HARYANA HIGH COURT] in which, it has been pointed out that examination-in-chief by the adjudicating authority must precede cross-examination, there is nothing on record to show that such pre-examination was done. The matter remains within the domain of assumption and presumption on many facets of factual evidence. In this regards, the case of Arya Fibres Pvt Ltd vs. Commissioner of Central Excise, Ahmedabad-II [2013 (11) TMI 626 - CESTAT AHMEDABAD] has been correctly relied upon. Confessional statements alone unless at least corroborated in material particulars, through the absence of sequel investigation through admissible and tested by examination/cross-examination process cannot be considered as sufficient evidence. The decision of Commissioner of Central Excise vs. Saakeen Alloys Pvt Ltd. [2014 (5) TMI 606 - GUJARAT HIGH COURT] has been correctly relied upon by the appellant. The decision was also upheld by the Hon’ble Supreme Court in [2015 (10) TMI 558 - SC ORDER]. That the admissible statements are also required to be further corroborated evidence has also been brought out by Hon’ble Bombay High Court in the matter of Commissioner of Central Excise, Thane-II vs. Seven Seas Corporation [2010 (9) TMI 384 - BOMBAY HIGH COURT]. This Court is of the view that even on merits, the evidence brought on record is insufficient to make out the case against the appellant. Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether statements recorded under Section 108 of the Customs Act, 1962 during DRI investigation can be relied upon in adjudication proceedings without examination-in-chief and opportunity for cross-examination as required by Section 138B of the Customs Act (and its pari materia provisions) and settled authorities. 2. Whether confessional or investigatory statements, untested and uncorroborated by independent evidence (such as examination of alleged recipients, transporters or flow-back of funds), are sufficient to sustain a demand for customs duty, redemption fine and penalties in cases of alleged clandestine removal/diversion of imported duty-free goods purportedly supplied as deemed exports. 3. Whether composite penalties (penalties imposed simultaneously on the firm and on individual partners/agents) are permissible absent discrete findings of individual culpability. 4. Whether the adjudicating authority complied with the Tribunal's earlier remand direction to provide inspection of relied-upon documents and to conduct de novo proceedings in a time-bound, fair manner consistent with principles of natural justice. ISSUE-WISE DETAILED ANALYSIS Issue 1: Admissibility and weight of statements recorded under Section 108; necessity of examination-in-chief and cross-examination under Section 138B Legal framework: Section 138B (reproduced in the judgment) makes statements recorded before a Gazetted Customs officer 'relevant' in certain circumstances only if conditions in clauses (a) or (b) apply; sub-section (2) extends the provisions to proceedings other than before a Court. The judgment also references Section 9D of the Central Excise Act and principles from Evidence Act sequences (examination-in-chief, cross-examination, re-examination). Precedent treatment: The Court relied on authorities including State of Bihar v. Radha Krishna Singh (regarding admissibility vs probative value), Basudev Garg (Delhi HC) and G-Tech Industries v. Union of India (P&H) (paras reproduced) that require the person who made the recorded statement to be examined before the adjudicating authority and for reasons to be recorded before admitting the statement in evidence; further authorities (High Court and Tribunal decisions) emphasize cross-examination as vital to fairness. Interpretation and reasoning: The Court held the statutory procedure is mandatory (use of 'shall') and not merely directory. Admissibility is a low threshold; probative value requires the statement to be tested by examination and cross-examination unless clause (a) (unavailability, etc.) applies. In the present facts there was no evidence of examination-in-chief or that the deponents were produced for examination before the adjudicating authority; thus the adjudicating authority impermissibly relied on recorded statements without fulfilling Section 138B procedure. Ratio vs. Obiter: Ratio - statements recorded during investigation cannot be relied upon in adjudication proceedings to prove truth of their contents unless admitted in evidence in accordance with Section 138B (i.e., examine the deponent and record reasons for admission) or invoked under clause (a). Obiter - reference to comparative language competence of deponents and preprinted statements illustrating concerns about voluntariness (fact-specific observations supporting the ratio). Conclusion: Reliance on the investigatory/confessional statements without following Section 138B requirements constituted a legal error that undermines the evidentiary basis of the adjudication. Issue 2: Necessity of corroborative, independent evidence to sustain demand for clandestine diversion and consequent duty/penalties Legal framework: Principles governing proof of clandestine removal/diversion require the Department to establish actual diversion by evidence demonstrating receipt by alleged recipients, transport details, and flow-back of funds; confessional statements must be corroborated by tangible material particulars. Precedent treatment: The Court relied on multiple authorities (Gopti Synthetics-Gujarat HC; Arya Fibres-CESTAT; Saakeen Alloys-Gujarat HC and Supreme Court affirmation; Seven Seas-Bombay HC) holding that confessional statements alone, especially retracted or uncorroborated ones, are insufficient to sustain heavy fiscal demands and penalties; absence of investigation of named buyers/recipients and lack of corroboration defeats the Department's case. Interpretation and reasoning: The Court found absence of tangible corroboration - no evidence from alleged recipient, no proof of physical removal to recipient, no demonstrated flow-back of funds, and reliance predominantly on untested statements. The Department had time after the search but failed to investigate and produce independent witnesses or documentary corroboration. Given the settled law, demands based solely or predominantly on uncorroborated statements are unsustainable. Ratio vs. Obiter: Ratio - in fiscal adjudication alleging clandestine diversion, confessional/investigatory statements must be corroborated by independent material evidence; absence of such corroboration makes the demand unsustainable. Obiter - observations on the sufficiency of particular transportation or bank evidence are fact-specific. Conclusion: The evidence on record is insufficient on merits to sustain the demand for customs duty, redemption fine and penalties for alleged diversion into DTA; confessional statements without corroboration cannot form the basis of confirmation. Issue 3: Composite penalties on firm and partners without discrete findings of individual culpability Legal framework: Penalty provisions require proof of individual culpability for imposition of penalty on persons; composite/duplicate penalization of firm and partners requires discrete findings tracing participation and liability. Precedent treatment: The appellants relied on authorities (R.G. Agarwal and other cited decisions) that disallow blanket imposition of penalties on both firm and partners absent specific findings demonstrating each person's role in the wrongdoing. Interpretation and reasoning: The Court noted that the impugned order imposed penalties on the firm and on individual partners/agents without discrete findings allocating responsibility; further, since the foundational demand itself is unsustainable for lack of corroborated evidence and unlawful reliance on recorded statements, the penalties could not be sustained in any event (citing principle that unsustainable demand vitiates penalty imposition, as in CCE v. HMM Ltd.). Ratio vs. Obiter: Ratio - composite penalties cannot be upheld when the adjudicating authority has not recorded discrete findings of individual participation and where the underlying demand is not established. Obiter - specific assessment of individual roles in this case was not undertaken given the broader evidentiary collapse. Conclusion: Imposition of penalties on the firm and on individuals in the absence of discrete culpability findings and reliable foundational evidence is unsustainable. Issue 4: Failure to comply with Tribunal's remand direction and breach of natural justice in the re-adjudication process Legal framework: Principles of natural justice and specific remand directions require that relied-upon documents be made available/inspected and that proceedings be conducted de novo in a time-bound manner, affording reasonable opportunity to the parties. Precedent treatment: The Tribunal's earlier remand directed inspection of relied-upon documents and reasoned de novo adjudication; authorities emphasise that compliance with remand directions and adequate time to inspect documents are essential to fair hearing. Interpretation and reasoning: The Court detailed chronology: relied-upon documents forwarded by DRI on 04.01.2016; adjudicating authority fixed hearing on 05.01.2016 and two subsequent hearings at short intervals, then proceeded ex parte on 18.02.2016 citing DRI letter of 14.02.2016 that no one had come to collect documents. The Court concluded that this sequence amounted to a denial of effective opportunity and was in defiance of Tribunal's earlier direction to decide in a time-bound but fair manner, especially after a three-year delay by the authorities in furnishing documents. The procedural conduct thus independently justified allowing the appeal. Ratio vs. Obiter: Ratio - failure to afford meaningful opportunity to inspect relied-upon documents and to comply with remand directions constitutes breach of natural justice and vitiates the adjudication. Obiter - comments on administrative inefficiency and chronology are fact-specific observations supporting the ratio. Conclusion: The adjudication process failed to comply with the Tribunal's remand directions and denied effective opportunity to the appellants, warranting allowance of the appeals on procedural grounds in addition to the merits. Final Disposition (as concluded by The Court) The Court allowed the appeals on procedural grounds (denial of meaningful inspection/opportunity after remand) and on merits (insufficiency of evidence due to impermissible reliance on unadmitted investigatory/confessional statements and lack of corroboration), and set aside the impugned orders including demands, redemption fine and penalties as recorded in the judgment.