2019 (8) TMI 976

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....Revenue are being disposed of by a common order as they arise out of the same impugned order passed by Commissioner, vide which he has imposed penalties of Rs. 1.00 Crore on Shri Ramesh Chandra Jaiswal, Rs. 75.00 Lakhs on Shri Durgesh Kumar, Rs. 50.00 Lakhs on Shri Jitendra Kumar Jaiswal) in terms of the provisions of section 114 of the Customs Act, 1962. Revenue's appeal is against the same impugned order on the ground that though in the discussion portion, the adjudicating authority has held M/s.Ganesh Agro Udyog liable to penalty, but in the operative part of the order no penalty stands imposed upon them. 2. We have heard Shri A.K.Prasad, learned Advocate for the appellants and Shri Gyanendra Kumar Tripathi, learned Authorized Represe....

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....o the present impugned order passed by the Commissioner. 5. Learned Advocate appearing for the appellant has strongly assailed the impugned order on the ground that the same is based solely on the statements of the three appellants recorded during the course of investigations. Apart from the fact that the disclosures made in the said statements have not been corroborated by any other independent evidences, the said deponents' statements were also not offered for cross-examination or examination in chief as required under section 138 of the Customs Act, 1962. Learned Advocate submits that the said section is pare materia by section 9D of the Central Excise Act, 1944 which has been judicially interpreted by various Courts as being essentia....

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....8. Further the deponents of the said statements have not been allowed to be cross-examined. It is well settled law that statements alone cannot be held to be the admissible evidence for the purpose of holding against the assesses without allowing cross-examination of the same. Reference can be made to Hon'ble Supreme Court's decision in the case of Andaman Timber Industries v. Commissioner of C.Ex., Kolkata-II [2015 (324) E.L.T. 641 (S.C.)] and Hon'ble Delhi High Court's decision in the case of Basudev Garg v. Commissioner of Customs [2013 (294) E.L.T. 353 (Del.)]. Not only that it also stands held in various judicial pronouncements that examination in chief of the deponent is also required to be done, in the absence of which the said state....