TaxTMI 
TaxTMI 
2020 (4) TMI 82
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....mises of the appellant at Delhi 75.808 Kgs of brown colour sandalwood and 23.03 Kgs of red sanders valued at Rs. 98,838/- were detained on 28.09.2013. Indian currency of Rs. 14.50 Lakhs was detained from the premises and an additional cash of Rs. 10 Lakhs from a person named Shiv Kumar who had just arrived at the premises. The detention was subsequently converted to seizure on 14.03.2014. II) 31.633 MT of red sanders, white wood logs, white wood powder, red wood powder, brown wood powder, etc were seized from godown of the appellant in Wazirpur Industrial Area, Delhi. III) Some documents were seized from the resident of one Shri May Ranjan, New Delhi. IV) Indian Currency of Rs. 4.20 Lakhs and some documents were seized from the residence in New Delhi of one Mr. Yodying @ Chan. V) 8.02 MT of red sander logs and some saw-dust were seized from the godown of Shri Daljeet Singh, New Delhi. VI) Some documents were also recovered from the residential premises of Shri Daljeet Singh at New Delhi, on 28.09.2013, which were formally seized on 14.03.2014. VII) A laptop was resumed from the residential premises of one Shri Saurabh Chopra on ....
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.... seized Indian currency was proposed to be confiscated under section 121 of Customs Act, 1962. The show cause notice also proposes panel action against the appellant and other persons under Section 114 of the Customs Act, 1962. After considering the appellants submissions the Learned Joint Commissioner of Customs adjudicated the show cause notice whereby imposed a penalty of Rs. 10 lakhs on the appellant and ordered confiscation of 23.03 Kgs of red sanders seized from the residence-cum-business premises of the appellant on 28.09.2013 and 750 kgs of red sanders seized from the godown of the appellant at Wazirpur Industrial Area, Delhi. The adjudicating authority did not confiscate 75.808 Kgs of goods seized from the residence-cum-business premises of the appellant on 28.09.2013 as they were found to be sandal wood and not red sanders. Quantity of 20.223 MTs of goods seized from godown was also not confiscated, on the ground that it was found to be sandalwood and not red sanders, 10.660 MTs out of total 11.411 MT seized of red sanders was also not confiscated as it was found to be duly reflected in the recorded stock of appellant in the godown Wazirpur Industrial Area. Being aggrieve....
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.... godown, is an admission on the record of the department that mere possession and trading in red sanders, within India, is not an offence under the Customs Act, 1962. F) The adjudicating authority has confiscated 750 Kgs of red sanders on the basis of a report dated 04.02.2015 of a Technical institute. This report was prepared prior to issue of show cause notice, hence, the same is not report as an RUD. The same was also not supplied to the appellant, therefore, firstly the said report could not have been relied upon, and secondly any decision on the basis of said report is clear contravention of the principles of natural justice. G) In a similar situation DRI had seized some red sanders from the appellant's godown on 24.11.2011. In the said case the matter was decided by the Commissioner (Appeals), IGI Airport, New Delhi, vide his order-in-Appeal No.CC(A)Cus/328/2014 dated 29.05.2014. in favour of the appellant holding that goods seized in India, away from any port of export, cannot lead to the conclusion that goods were attempted or intended to be exported. The said Order-in-Appeal has been accepted by the department. Following the same ratio, the present appeal....
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.... appellant from the possession of one Shri Shiv Kumar Jogi. This amount could not have been confiscated without issuing any show cause notice to shri. shiv Kumar. L) The appellant submits that in view of the above, no case is made out either for confiscation of the red sanders and cash seized at the various premises of the appellant or for imposing any penalty on the appellant. M) Their further submission is that the export of red sanders is no longer prohibited w.e.f 18.02.2019 as per the Foreign Trade Policy (DGFT's Public No. 74/2015-20 dated 18.02.2019). N) It is also submitted the second Order-In-Appeal dated 19.11.2019 is ab-initio void since it has been issued in the context of Order-inOriginal dated 31.01.2017 which does exist and has already merged with the 1st Order-in-Appeal dated 14.06.2019 (impugned order), which is presently under challenge in this Appeal. Hence, once the present Appeal is decided the same will be brought to the notice of the adjudicating authority to drop the denovo proceedings. 5.1 In supports of his above submission, he placed reliance on the following judgment: • 2000 (122) E.L.T. 641 (S.C.) Swadeshi Poly....
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.... • 2016 (338) E.L.T. 113 (Tri.-Del.) Commissioner of Central Excise, Delhi-I Vs. Kuber Tobacco India Ltd • 1992 (57) E.L.T. 284 (Tribunal) Kashmiri Versus Collector of Customs • 2018 (362) ELT 961 (Chh.) Hi Tech Abrasives Ltd. Vs. Commissioner of Central Excise, & Customs Raipur 6. Learned Authorized Representative appearing on behalf of the Revenue reiterates the finding of the impugned order which is related to confiscation of the goods and cash. He further submits that there is strong evidence against the appellant in support of the offence of the appellant i.e. attempt to export of prohibited goods in the form of various statements of various persons. 7. As regard, the appellant's claim that the statements were retracted, he submits that there is a catena of judgments where in the court held that retraction statements has to be made before the same authority before whom earlier statements under Section 108 of the Customs Act were made. He placed reliance on the judgment of Sidhharth Shankar Roy-2013 (291) ELT 244 (Tri.-Mumbai). He further submits that it was proved beyond doubt that the illegal sale was made by Shri. Anil Gagodia for expo....
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....gainst the appellant was made out by the department on the charge that the appellant have attempted to export the prohibited goods namely Red Sanders which were kept in the premises of the appellant. For making such charge the revenue has heavily relied upon various statements of various persons. We find that almost all the statements were retracted in writing, the details of same is as under:- 1) The statement of Shri. Rameshwar Sharma, Proprietor, Euro exports dated 28.09.2013 and 29.09.2013 were retracted on 29.01.2014. 2) The statement of Shri Anil Gadodia, Proprietor of M/s. Jiwan International, dated 28.09.2013, 29.09.2013 was retracted on 30.9.2013. 3) The statement dated 28.09.2013 of Shri Mayur Ranjan, a Chines interpreter and a tour guide working freelance was retracted on 11.10.2013. 4) The statement dated 28.09.2013 & 29.09.2013 of Shri. Daljeet Singh working with a Cargo Moving Company were retracted on 06.11.2013. 5) The statement dated 28.09.2013 and 29.09.2013 of Mr. Yodying@ Chan, a permanent Bangkok resident, were retracted on 14.10.2013. 6) The Statement dated 29.09.2013 of Shri. Kamal Negi a freight forwarder....
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....tatute to grant the cross examination. In absence of cross examination of the witnesses the statements given by them has no evidentiary value and same cannot be relied upon against the appellant. This issue has been considered time and again by the various courts. In the case of Parmarth Iron Pvt. Ltd. (supra), the Allahabad High Court held that if Revenue chooses not to examine any witnesses in Adjudication, their statements are not considerable as evidence. If the statements have been relied, then persons whose statements relied upon have to be made available for cross examination for evidence to be considered. In the case of Andaman Timber Industries (supra), the facts of the case was that the Revenue had issued a Show Cause Notice of under valuation by the appellant only on the basis of statements of two witnesses. Request of appellant seeking cross examination not dealt with in order. The Hon'ble Court held that by not granting the cross examination of witnesses, Principles of natural justice violated making Order nullity. In the case of Flevel International (Supra) the Hon'ble Delhi High Court dealing with the case where either no serious attempts made for cross examination o....