TaxTMI 
TaxTMI 
2020 (6) TMI 72
X X X X Extracts X X X X
X X X X Extracts X X X X
....reinafter referred to as "CESTAT") in Customs Appeal No. 52593 of 2019 which, in turn, was preferred, before the learned Tribunal against Order-in-Original, dated 4th October, 2019 passed by the appellant. 2. Vide order dated 29th January, 2020, this appeal was admitted on the following substantial questions of law: "(i) Whether the CESTAT can substitute its view for the discretion of the Adjudicating Authority U/S 110A? (ii) Whether the appellate jurisdiction of the CESTAT against an order passed u/s 110A is restricted to examining whether such an order has been passed after duly considering the law in respect of provisional release and not pass arbitrarily? (iii) Whether the appellant is entitled to provisional release of the seized gold in question in view of the facts and circumstances of this case?" Though, as noted hereinabove, three questions of law were framed by this Court, Question No. (iii) effectively subsumes Questions No. (i) and (ii). A Brief Factual Overview Relevant statutory provisions/Notifications 3. Exemption to imports under Advance Authorisation scheme 3.1 Notification 18/2015-Cus, issued under Section 25(1) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 of 1975) and specified in column (2) of the Table below when re-imported into India, from so much of the duty of customs leviable thereon which is specified in the said First Schedule, and the whole of the, integrated tax, compensation cess leviable thereon respectively under subsection (7) and (9) of section 3 of the said Customs Tariff Act, as is in excess of the amount indicated in the corresponding entry in column (3) of the said Table. Table Sl.No. Description of goods Conditions (1) Goods exported - (a) under claim for drawback of any customs or excise duties levied by the Union; amount of drawback of customs or excise duties allowed at the time of export; (b) under claim of drawback of any excise duty levied by the State amount of excise duty leviable by State at the time and place of importation of the goods allowed at the time of export; (c) under claim for refund of integrated tax paid on export goods amount of refund of integrated tax, availed at the time of export; (d) under bond without payment of integrated tax amount of integrated tax not paid; (e) under duty exemption scheme (DEEC/Advanced Authorisation/DFIA) or Export ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be placed or removed during the course of maintenance, repair or overall of the aircraft in a Special Economic Zone and brought to any other place in India. Explanation. - For the purpose of this notification, "Special Economic Zone" has the meaning assigned to it in clause (za) of section 2 of the Special Economic Zones Act, 2005 (28 of 2005) Nil 5 Goods other than those falling under Sl No. 1, 2, 3 and 4 Nil Provided that the Assistant Commissioner of Customs/Deputy Commissioner of Customs is satisfied that - (a) xxxxx (b) xxxxx (c) in the case of goods exported under the Duty Exemption Scheme (DEEC/Advance Authorisation/DFIA) or Export Promotion Capital Goods Scheme (EPCG) or Duty Entitlement Passbook Scheme (DEPB) or any award scheme of Chapter 3 of Foreign Trade Policy, reimportation of such goods takes place within one year of exportation of such extended period not exceeding one more year as the Principal Commissioner of Customs or Commissioner of Customs, as the case may be, on sufficient cause being shown for the delay may be allowed; (d) The goods are the same which were exported; (e) xxxxx (f) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... said notification. As in the case of re-import of specified goods, no integrated tax was required to be paid for specified goods at the time of taking these out of India, the activity being not a supply, hence the said condition requiring payment of integrated tax at the time of re-import of specified goods in such cases is not applicable. It is clarified that such re-import cannot be taken to be falling under situation at Sl. No. 1(d) of the said Notification. Such cases will fall more appropriately under residuary entry at Sl. No. 5 of the said Notification even though those specified goods were exported under LUT, in view of the fact that the activity of sending/taking specified goods out of India is neither a supply nor a zero rated supply. 4. It is also clarified that, even in cases where exports have been made to related or distinct persons or to principals or agents, as the case may be, for participation in exhibition or on consignment basis, but, such goods exported are returned after participation in exhibition or the goods are returned by such consignees without approval or acceptance, as the case maybe, the basic requirement of 'supply' as defined cannot be sai....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... goods, came to be decided, by the ADG, DRI, vide order dated 4th/7th October, 2019. Prior thereto, the respondent was visited with Show Cause Notice, dated 26th September, 2019, containing various allegations and proposing various actions, including confiscation of the seized gold, gold jewellery, and other articles forming subject matter of the present proceedings. These proceedings are pending adjudication. 10. The ADG, DRI, vide order dated 4th/7th October, 2019, rejected the request, of the respondent, for provisional release of the seized gold, gold jewellery and silver by opining that "it would be premature to arrive at any conclusion, about provisional release of seized goods, before completion of adjudication proceedings". 11. Aggrieved thereby, the respondent preferred Customs Appeal 52593/2019, before the learned Tribunal, which has come to be allowed by the impugned Final Order. 12. As noted in para 1 supra, the learned Tribunal has, vide the impugned Final Order, set aside the order, dated 4th/7th October, 2019, of the ADG, DRI, and has permitted provisional release of the aforesaid gold, gold jewellery and silver, on furnishing of a bond, for the full value t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e same as those which had earlier been exported for the purposes of exhibition. The Revenue had not produced any evidence to indicate that the imported jewellery was different from the jewellery that had earlier been exported under Shipping Bills No. 117932 dated 13th March, 2019 and 117209, dated 20th April, 2019. The jewellery could not, therefore, be regarded as "prohibited goods", within the meaning of Section 2(33) of the Customs Act. (ii) Re. Goods seized at the workshop (a) Insofar as the 25 gold bars, seized at the workshop, were concerned, the respondent contended that, of the said 25 gold bars, 22 gold bars had been imported by it, under the Advance Authorisation, dated 4th January, 2019, held by it, vide Bill of Entry No. 2873828 dated 17th April, 2019. The respondent contended that, under the said Bill of Entry No. 2873288, 50 gold bars had been imported by it, each of which bore a unique bar number. (b) Comparison of the serial numbers of the seized 25 gold bars, with the numbers of the gold bars imported vide Bills of Entry No. 2873288 dated 17th April, 2019 and the Packing List, dated 15th April, 2019, it was seen that the bar numbers of 22 of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... did not cover the entire quantity of 51,172.4 grams of gold jewellery being carried by him. (iv) At the time of interception, Amit Pal Singh was not found in possession of any copy of any Bill of Entry. All five copies of the following Bills of Entry were found in the office of Vikram Bhasin, the Jewellery Appraiser: (a) Bill of Entry No. 10710 and Job Entry 109254, dated 26th February, 2019, signed by the Customs Import Clerk, as well as by the respondent, covering 25400.06 grams of gold jewellery, and (b) a second undated, unregistered Bill of Entry, and signed by the respondent, covering 25299.68 grams of gold jewellery. Of these, the second Bill of Entry was not found in the list of manual Bills of Entry obtained from the ACC (Import). (v) Standing Order No. 03/2018, dated 18th December, 2018, mandated that the manual Bill of Entry was required to be submitted, containing the Bill of Entry Number, the Job ID Number and the date and signature of the Import Clerk. For want of compliance with this requirement, it was clear that the second, undated and unregistered Bill of Entry, found at the office premises of Vikram Bhasin, was fake/f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a, learned Additional Solicitor General, and, on behalf of the respondent, by Mr. S. Ganesh, learned Senior Counsel. 21. The learned ASG prefaced her arguments by submitting that the impugned Final Order had been passed, by the learned Tribunal, in violation of the principles of natural justice, as it was passed on the very first date of hearing, without affording the Revenue any time to respond to the appeal of the respondent. On merits, adverting, first, to the airport seizure, the learned ASG emphasised the fact that the Bills of Entry, whereunder the gold jewellery had been imported, were not recovered from the respondent, but from Vikram Bhasin, which itself indicated that the imports were fraudulent. Relying on the judgement of the Supreme Court in Om Prakash Bhatia v. Commissioner of Customs 2003 (155) ELT 423 (SC), the learned ASG submitted that the imported gold jewellery, thereby, was rendered "prohibited", and the release thereof, even at a provisional stage, impermissible. She also placed reliance, in this context, on the judgement of the Supreme Court in Sheikh Mohd. Omer v. Collector of Customs 1983 (13) ELT 1439 (SC) and of the High Court of Madras in Malabar Diam....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt, by Amit Pal Singh, of 0.745 kg gold jewellery, in one bag, with the remaining 20.8205 kg gold jewellery being exported by one Mustafa Kamal Ramalappa, who was destined for Kathmandu. To buttress her submissions, the learned ASG placed reliance on the judgement of the High Court of Madras in Commissioner of Customs (Air) v. P. Sinnasamy 2016 (344) ELT 1154 (Mad). 24. The learned ASG submitted that the Act completely prohibited import of goods without filing of a Bill of Entry. Such goods were, ex facie, in her submission, liable to confiscation, and the act of import of the goods tantamounted to "smuggling". Provisional release, of such smuggled goods, she submits, was impermissible. No reliance, she submits, could be placed on the appraisal report of Vikram Bhasin, who was in collusion with the respondent, and was a conoticee in the proceedings. She took us through the grounds, in the present appeal, as urged by the ADG, DRI. She also submitted that differential amounts were channelled out of India through hawala. 25. The above factors, submits the learned ASG, cumulatively viewed, clearly indicated that the learned Tribunal had erred in permitting provisional release of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (Del), Mink Tradecom Pvt Ltd v. U.O.I. 2018 (8) GSTL 129 (Del), Mala Petrochemicals & Polymers v. A.D.G., DRI 2017 (353) ELT 446 (Del) and Commissioner of Customs (Port) v. Aman Exports 2018 (362) ELT 747 (Cal). 29. Mr. Ganesh submits that his client is not a fly by night operator, but is a 3 star export house, which has earned, for the country, foreign exchange in excess of Rs. 1000 crores. He submits that his client had been issued an Advance Authorisation, permitting import of 1000 kg of gold. As such, he submits, the finding, of the learned Tribunal, to the effect that the seized gold, seized from the office premises of his client, pertained to earlier imports, could not be faulted. 30. Mr. Ganesh submits, further, that the appellant has not, in its appeal, either pleaded perversity, in the findings of the learned Tribunal, or suggested any issue to that effect. He submits that, therefore, the finding of fact, of the learned Tribunal, to the effect that the imported gold was completely accounted for, and that the gold, that had been exported for exhibition, was the same as that which was re-imported and subsequently seized, did not call for interference, at the hands of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Notice dated 26th September, 2019. 36. The present appeal, it is necessary to note, is directed against an order, passed by the learned Tribunal, permitting provisional release, of the gold, gold jewellery and silver, seized from the respondent at the Airport, and from its workshop premises, on certain terms. Our brief, therefore, it is only to adjudicate on whether the said decision, of the learned Tribunal, to permit provisional release, and the terms fixed by the learned Tribunal in that regard, call for interference, by us, in exercise of the appellate jurisdiction, conferred on us by Section 130 of the Act. 37. While exercising appellate jurisdiction under Section 130 of the Act, the High Court does not sit as an appellate authority on issues of fact. The learned Tribunal, as Mr. Ganesh correctly points out, is the final fact-finding authority. Before opining further in this regard, we deem it appropriate to extract, for ready reference, sub-section (1) of Section 130 of the Act, thus: "130. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s misread, the High Court would have the power to interfere. [See West Bengal Electricity Regulatory Commission v. CESC Ltd, (2002) 8 SCC 715, and also Commissioner of Customs, Mumbai v. Bureau Veritas & Ors, (2005) 3 SCC 265]" In Paras Ship Breakers Ltd v. Commissioner of Central Excise 2007 (217) ELT 321 (SC), the Supreme Court upheld the decision, of the High Court, not to interfere with the finding of fact, arrived at by the learned Tribunal, as no substantial question of law arose therefrom. 39. Significantly, in Kushal Fertilisers (P) Ltd v. Commissioner of Customs and Central Excise 2009 (238) ELT 21 (SC), the Supreme Court held that a finding, by the learned Tribunal, to the effect that, as there was no wilful misstatement or suppression of fact, the extended period for issuance of Show Cause Notice, under the proviso to Section 11A of the Central Excise Act, 1944, was purely one of fact, and did not give rise to any substantial question of law. We may reproduce, in this context, para 17 of the judgement of the Supreme Court, thus: "Whether non-furnishing of information was wilful and would amount to suppression of material fact in terms whereof the extended ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l various benefits. The Tribunal rejected the allegation, relying, for the purpose, on expert opinion. It was also held, by the learned Tribunal, that, as the goods were exempt from Customs duty, no motive, for overvaluing the imports, could be discerned. The Supreme Court held that these were purely findings of fact, which did not give rise to any substantial question of law. (ii) In Commissioner of Central Excise and Customs v. Ador Welding Ltd 2015 (325) ELT 6 (SC), the Supreme Court held the finding, by the learned Tribunal, to the effect that the respondent, and its purchaser, were not "related persons", and that the explanation, of the respondent, for charging extra trade discount of 10%, was acceptable, to be pure findings of fact, not giving rise to any substantial question of law. (iii) In Commissioner of Customs (Adjudication) v. R. K. International 2017 (355) ELT 165 (SC), it was alleged that the respondent imported ball bearings, mis-declaring the imports as lead scrap. It was also alleged that the respondent had lent its name to certain decoy importers, who effected imports on behalf of the respondent. The learned Tribunal held that there was lack of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ity, when applied to findings of fact, is to be found in the following passage, from S. R. Tewari v. U.O.I. (2013) 6 SCC 602, which relies, in turn, on a veritable phalanx of precedents: "The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with." In Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, it was held that, "if there is some evidence on record which is acceptable and which could be relied upon, however, compendious it may be, the conclusion would not be treated as perverse and find....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atisfaction of concerned authority in the Customs Department. The petition stands disposed of with the above directions." 4. It is this judgment which is the subject matter of the present appeal. It is clear from the aforesaid direction that the respondent was allowed to get the goods released on provisional basis with certain conditions. We are informed that after the passing of this aforesaid direction by the High Court, the Respondent had even got the goods released after complying with the directions of the High Court. In these circumstances, nothing survives in the present appeal. Otherwise also, there is no reason to interfere with the order in question, when the arrangement made by the High Court in the said order was only provisional one by way of interim arrangement." (Emphasis supplied) 46. "Provisional", we may note, has been defined, in Ramanatha Aiyar's Advanced Law Lexicon as "temporary, preliminary; tentative; taken or done by way of precaution or ad interim." 47. The exercise of power, to release imported goods on a provisional basis, under Section 110A of the Act is, essentially and fundamentally, discretionary in nature. At this point, w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t it appropriate to limit, in any manner, the nature of goods, documents or things which may be provisionally released, under Section 110A, in our view, it is no part of the function of a court to read, into the said statutory provision, any artificial limitation, not to be found therein. It is only in exceptional situations, where there is an apparent legislative lacuna, which, if left unfilled, would result in manifest injustice, or frustrate the object of the legislation, that a Court can step in and fill the lacuna and, to that limited extent, perform a quasi-legislative function. Else, the Court must rest content with being an interpreter of existing legislation, and has to accept the legislation for what it is. 49. We may, to make matters clearer, contradistinguish Section 110A of the Act, as extracted hereinabove, with Section 125(1) thereof, which reads thus: "125. Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rovisional release, under Section 110A of the Act, for the simple reason that Section 110A does not except its application in the case of "prohibited" goods. Rather, it indicates, unequivocally, to the contrary, by using the omnibus expression "any goods, documents or things". 51. The learned ASG also placed pointed reliance on Circular 35/2020-Cus supra, issued by the CBEC, para 2 of which absolutely proscribes provisional release of "goods prohibited under the Customs Act, 1962 or any other Act for the time being in force", "goods that do not fulfil the statutory compliance requirements/obligations in terms of any Act, Rule, Regulation or any other law for the time being in force; and "goods specified in or notified under Section 123 of the Customs Act, 1962". Mr. Ganesh relied on Agya Import Ltd, which holds that para 2 of the said Circular was merely in the nature of a "general guideline", and did not incorporate any mandate. We, having perused para 2 of Circular 35/2017-Cus supra, vis-à-vis Section 110A of the Act, are not inclined to be so magnanimous. According to us, para 2 of Circular 35/2017-Cus is clearly contrary to Section 110A and is, consequently, void and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the learned Tribunal, consequent to quashing the Order, dated 4th October, 2019, of the ADG, was to remand the matter to the ADG, to exercise the jurisdiction vested in him by Section 110A of the Act, and fix the terms of provisional release. The learned Tribunal, according to her, could not have undertaken this exercise, and, by doing so, it effectively usurped the jurisdiction of the learned ADG, conferred by Section 110A. 55. We are unable to agree, for various reasons. 56. Firstly, Section 129B(1) of the Act empowers the learned Tribunal, seized with an appeal, challenging the order of the adjudicating authority, to "pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary". We are convinced that the jurisdiction, of the learned Tribunal, to "confirm, modify or annul" the order dated 4th October, 2019, was wide enough to encompass the power to direct provisional relea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter completion of adjudication proceedings. Section 110A of the Act specifically empowers provisional release "pending the order of the adjudicating authority". It is impossible, therefore, to conceive provisional release consequent on adjudication, or to understand how the ADG chose to opine that it would be "premature" to arrive at any conclusion about provisional release, before completion of adjudication proceedings. As, after conclusion of adjudication proceedings, the question of provisional release of the goods would be rendered infructuous and, in fact, the adjudicating authority would become functus officio in that regard, in view of the specific words used in Section 110A, the only conclusion, that can follow from the afore-extracted inexplicable finding of the ADG, is that he had made up his mind not to release the seized gold, gold jewellery and silver, provisionally, at any cost. We, therefore, find ourselves in agreement with Mr. Ganesh that any remand, of the matter, to the ADG, to fix the terms of provisional release, would have been an exercise in futility. For this reason, too, we are unable to hold that, in directing provisional release of the gold, gold jeweller....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vested right. Section 110A has, advisedly, left the matter to the discretion of the adjudicating authority, to be exercised in his best judgement, keeping in mind the overall facts and circumstances. The use of the word "may" is amply sufficient to clothe the adjudicating authority with the jurisdiction to decide one way or the other, on the request for provisional release, keeping, at all times, the interests of justice paramount. The sequitur would, however, be that, where the authority - in the present case, the learned Tribunal - has decided to provisionally release the goods in issue, and has fixed the terms of provisional release, this Court would, in appellate jurisdiction under Section 130 of the Act, interfere only where the exercise of discretion, by the learned Tribunal, is found to be perverse, in that it is contrary to the facts before the learned Tribunal, amounts to a perverse appreciation thereof, or is such as no reasonable person would have arrived at. Absent these infirmities, we are convinced, in our mind, that no case for interference, with the decision of the learned Tribunal could be said to have been made out, even if we, on the facts, may be of the opinion ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ave been seized when the appellant had been working in the bonded premises and he has all the documents for illegal possession of primary gold bars as well as gold jewellery. Prima facie, we do not find any ground to hold that the seized/detained goods falling under the category of prohibited goods as the appellant prima facie has all the legal documents for rightful possession of the same." (Emphasis supplied) 64. These are pure findings of fact, returned by the learned Tribunal after examining the record before it. Absent any perversity therein, this Court cannot re-appreciate the said findings, in exercise of its jurisdiction under Section 130 of the Act. Far from alleging perversity, qua these findings, the appeal, of the ADG, DRI, does not contain even a whisper of an averment, disputing or traversing the said findings. There is no submission, anywhere in the body of the appeal before us, which could even obliquely indicate that the above findings, returned by the learned Tribunal - including the finding that the bar numbers of 22 of the 25 gold bars, seized from the workshop of the respondent, were identical to the bar numbers of the gold bars imported vide Bill of Entr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of either of the Bills of Entry, and all five copies of the Bills of Entry were found with Vikram Bhasin, the Jewellery Appraiser, and (iv) it was admitted by Gopal Gupta, in his statement, under Section 108 of the Act, recorded during the course of investigation, that the 2 Bills of Entry, which were presented at the time of clearance of the gold jewellery, were intended to be replaced, later, with Bill of Entry No. 107854, dated 18th April, 2019, for 662.12 grams of gold jewellery. 70. The appellant has also placed extensive reliance on the statements, recorded under Section 108 of the Act, during investigation, from various persons, and the assertions, in this regard, as contained in the appeal, we may note, mirror the allegations in the Show Cause Notice, dated 26th September, 2019, which is presently pending adjudication before the Commissioner of Customs. The learned ASG has also, in her submissions, sought to draw the attention of the Court to various "admissions", in the said statements which, according to the, indicate that the aforesaid quantity of 51172.4 grams of gold jewellery was, in fact, being smuggled into India, using Bills of Entry which, at a later....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... us, cannot be said to be such as would render the exercise of discretion, by the learned Tribunal, in favour of provisional release of the 25400.06 grams of gold jewellery, perverse. Absent such perversity, no case, in our view, can be said to exist, as would justify our interference, with the exercise of discretion by the learned Tribunal, in exercise of our jurisdiction under Section 130 of the Act. 73. We may hasten to add, here, that our view, in this regard, does not discountenance, in any manner, the allegation, of the DRI, that the entire quantity of 51172.4 grams of gold jewellery was, in fact, being smuggled into India, or that it was, consequently, liable to confiscation. That is a matter to be decided in adjudication. Provisional release of the gold jewellery does not, in any manner, inhibit the adjudicating authority from holding that the jewellery was, in fact, liable to confiscation, or passing appropriate orders in that regard. It is precisely for this reason that, at the time of provisional release, the importer is required to furnish a bond, covering the full value of the imported goods, along with security, in accordance with law. Allowing provisional release ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fected assessee so chooses, tested by cross-examination. We may, in this context, reproduce, for ready reference, Section 138B of the Act, thus: "138B. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt should be admitted in the interests of justice. 20. In fact, Section 138 of the Indian Evidence Act, 1872, clearly sets out the sequence of evidence, in which evidence-in-chief has to precede cross-examination, and cross-examination has to precede re-examination. 21. It is only, therefore, - (i) after the person whose statement has already been recorded before a Gazetted Central Excise Officer is examined as a witness before the adjudicating authority, and (ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing, that the statement deserves to be admitted in evidence, that the question of offering the witness to the assessee, for cross-examination, can arise." (Emphasis supplied) We express our respectful concurrence with the above elucidation of the law which, in our view, directly flows from Section 138B(1) of the Act - or, for that matter, Section 9D of the Central Excise Act, 1944. 77. The framers of the law having, thus, subjected statements, recorded under Section 108 of the Act, to such a searching and detailed procedure, before they are treated as relevant in adjudication proceedi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....refore, to set aside the decision of the learned Tribunal, to allow provisional release of the quantity of 25299.68 grams of gold jewellery, seized at the Airport, which was not covered by any registered Bill of Entry. 81. The resultant position is, therefore, that, while we uphold the decision, of the learned Tribunal, to allow provisional release of the gold, gold jewellery and silver seized at the workshop premises of the respondent, as well as 25400.06 grams of gold jewellery, seized at the Airport, in respect of which there was a registered Bill of Entry, bearing the signatures of the respondent as well as the Customs Import Clerk, as also the Jewellery Appraiser, with a corresponding Job ID No., we set aside the decision, of the learned Tribunal to allow provisional release of the remaining quantity of 25299.68 grams of gold jewellery, seized at the Airport, in respect of which the Bill of Entry, presented for clearance, was unregistered, with no corresponding Job Id No., and did not bear the signature either of the Customs Import Clerk or of the respondent. 83. Adverting, now, to the terms of provisional release, the impugned Final Order does not set out any precise re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Bank Guarantee, containing an autorenewal clause, for Rs. 10 crores, which works out to over 30% of the value of the seized gold (including the gold of which provisional release is not being permitted). This, in our opinion, would sufficiently safeguard the interests of the Revenue. Conclusion 87. Resultantly, the substantial questions of law, framed vide our order dated 29th January, 2020, and reproduced hereinabove, are answered thus: (i) Questions (i) and (ii) are answered by holding that the power and jurisdiction of the learned Tribunal, hearing an appeal against an order of provisional release, is coequal with the power exercised by the adjudicating authority. The learned Tribunal, therefore, has the power to direct provisional release, as well as to fix the terms thereof. In the present case, no question of substitution, by the learned Tribunal, of its view, for the discretion of the adjudicating authority, arises, as the adjudicating authority, i.e. the learned ADG, DRI, vide his order dated 4th October, 2019, never proceeded to fix any terms for provisional release, but held, instead, that it would be premature to arrive at any conclusion, about provisional....