TaxTMI 
TaxTMI 
2023 (12) TMI 12
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....ring registration no. UP-70-EX-0465 (under Section 115(2) of the Customs Act, 1962. However, I give an option to the legal owner to redeem the said seized vehicle on payment of redemption fine of Rs. 5,00,000/-( Rupees Five lakh) within one month of receipt of this order failing which the vehicle would be disposed off in terms of the provisions of Customs Act, 1962. (iii) I order for absolute confiscation of Packing material i.e. HDPE bag under Section 118 of the Customs Act, 1962. (iv) I impose penalty of Rs.1,00,00,000/-( Rupees One Crore), Rs.1,00,00,000/-( Rupees One Crore) and Rs.5,00,00,000/- ( Rupees Five Crore)- Total Penalty Rs Seven Crore, under Section 112 (a), 112 (b) and 114 AA respectively of the Customs Act, 1962 upon Mr. Mayank Agrawal, S/o Shri Shree Ram Agrawal, Address: R/o 6/8E/A01, Lal Bahadur Shastri Marg, Allahabad, Uttar Pradesh-211001; (v) I impose a penalty of Rs. 5,00,000/- (Rupees Five lacs) each under Section 112 (a) and 112 (b) respectively of the Customs Act, 1962--Total Penalty Rs Rupees Ten lacs, upon Mr. Rajwan Singh @ Sh. Rajwant Yadav @Rajwansh Singh Yadav, Age- 38 years, S/o Shri Indra Gopal Singh, R/o-CDA (P), Droupad....
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....orty Six Lakhs only) should not be confiscated under Section 111 (a), (b), (h) & (m) of the Customs Act, 1962 for the easons discussed herein above. (ii) Vehicle Hyundai Venue car bearing registration No UP 70 EX 0465 should not be confiscated under Section 115 of teh Customs Act,1 962. (iii) Packing material should not be confiscated under Section 118 of the Customs Act, 1962. B. Shri Mayank Agarwal, S/o Shree Ram Agarwal Address:R/o 6/8E/A-01, Lal Bahadur Shastri Marg, Allahabad, Uttar Pradesh211001 (Noticee No 3) to show cause as to why penalty should not be imposed upon him under Section 112 (a) and/or 112 (b) and Section 114 AA of the Customs Act,1962, separately, for the reasons discussed in the show cause notice. C. Shri Mohammad Sarfaraj Hashmi (Age 43 years) S/o Shri Mohd. Gulab Hashmi, R/o 227, Nakhas Kohna, P S Shahganj Allahabad City, Uttar Pradesh -211003 and Shri Rajwant Singh @ Rajwant Yadav @ Rajwansh Singh Yadav, Age 38 yrs, S/o Shri Indra Gopal Singh, R/o CDA (P) Droupadi Ghat, P S Sadar Bazar Cantonment, Allahabad, Uttar Pradesh were asked to show cause as to why penalty under Section 112 (a) and/or 112 (b) of the Customs....
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....s-examination Commissioner has recorded in the order as follows:- "Noticee No.3 has made request for opportunity of cross examination of following person to meet the requirement of principles of natural justice i. Shri Rajesh Kumar Gupta, valuer from M/s Badri Narain Laxmi Narain Jewelers, Rajkamal Hotel Building, Aminabad Road, Lucknow-226018; ii. Shri Rajesh Kumar Gupta, Prop. of Mis Shree Giriraj Ji Jewellers, 1981200, Clo Hotel The mansion, Mallapura, Potrakund, Mathura, U.P. While Noticee No.1 and 2 have requested vide their written submission dated 21.10.2022 for cross examination of witnesses. The issue has been considered in detail in view of material facts available on records and submission made by the Noticees. Cross examination of Shri Rajat Gupta, Shri Rajesh Kumar Gupta and witnesses as requested by the Noticees is primarily based on the contention that recordings of the proceedings undertaken by the DRI officers in this regard have not been made RUDs in the impugned show cause notice issued to them and after lapse of considerable time, the Noticees have submitted their statement was taken under duress/record....
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....r had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The Customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioners. So there is no need to call panch witnesses for examination and cross-examination by the petitioners ..... 12.II. In the case of Jagdish Shanker Trivedi Vs. Commissioner of Customs, Kanpur [2006 (194) E.L.T. 290 (Tri.-Del.)], Tribunal observed at Para 7.2 "Confessional statements of noticee - Retraction thereof which was otherwise unacceptable, would not entitle them to claim cross-examination of witnesses on aspects which were confessed by them- There is no violation of natural justice principles in such a course... 12.III. The Hon'ble Delhi Tribunal in the case of Onida Saka Ltd. v/s Commissioner of Central Excise, Noida [2011 (267) E.L.T. 101 (Tri.Del)] in para 4 of its order held that ".......,since the statements» of the persons whose cross-examination has been sought, has not been retracted,....
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....ld that the Customs Officer even under the Act of 1962 continues to remain a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry into India of dutiable goods without payment of duty and of goods of which the entry is prohibited. He does not on that account become either a police officer, .... Any statement made under Sections 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence.... ... ... 32.....the failure to give him the opportunity to crossexamine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross-examin....
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....pta, valuer and Shri Rajesh Kumar Gupta, while Noticee No 1 & 2 vide their written submission dated 21.10.2022 have requested for providing them an opportunity for cross examination of witnesses claiming that the GST invoice was available with them at the time of interception of seized vehicle by the DRI officers. Noticees have never disputed the seizure of recovered Goods under the Fard/ Baramdagi/ Recovery Memo dated 30.06.2021/ 01.07.2021 duly signed by the Noticee No 1 & 2 and Panchas and DRI Officers. I find that the noticees have made request for cross examination of the persons mainly based on following issues as submitted by them citing the violation iof principle of natural justice:- A. challenging the voluntary statement of Shri Rajat Gupta tendered before the officers under Section 108 of the act. B. Technical reports submitted by Shri rajesh Kumar Gupta, valuer C. Noticee no 1 and 02 were in possession of invoice at the time of interception of seized vehicle by DTI officers. I find no justification fro violation of principle of natural justice as claimed by the Noticees in view of the opportunities given to them to subm....
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....est for cross examination of the persons made by the noticees in the light of discussion held above and also in the light of observation made by the Hon'ble courts in their various judgments as discussed supra. " 4.3 From the facts as recorded in teh impugned order it is evident that the two persons namely Shri Rajat gupta and Shri Rajesh Kumar Gupta, valuer are neither co-accused in teh matter nor are they the panch witnesses. The persons whose cross examination has been asked by the appellant were the person whose statement revenue intends to rely for proceedings against the appellant. Commissioner ahs in the impugned order relied upon series upon series of judgements which were not on the identical facts as noted in the table below: Surjeet Singh Chabbra 1997 (89) ELT 646 (SC) Cross examination of pinch witnesses and the officers was not allowed in view of the confessional statement of the accused. Jagdish Singh Trivedi 2006 (194) ELT 290 (T-(Del)] Commissioner has in the impugned order quoted the head note which is neither the aprt of the decision and has not even cared to rad the decision. Para 9 of the decisions which is relevan....
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....appellant Ashish Kumar Chaurasia were not entitled to claim cross-examination as a matter of right. The appellant Ashish Kumar Chaurasia had, in fact, cross-examined two official witnesses and at the end, he had only sought for time for further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set out in the impugned order and it is recorded that, "various dates of personal hearing was given one after the other but neither Ashish Kumar Chaurasia nor his advocate turned up". It is clear from the record that the appellants had been given adequate opportunity of being heard in the matter pursuant to the show cause notice issued under Section 124 of the said Act, and there has not been any violation of the principles of natural justice." Onida Saka Ltd. 2011 (267) ELT 101 (T-Del) Tribunal has in the case found that no fruitful purpose will be served if the cross examination of the persons whose cross examination has been sought is denied. Telestar Travels Pvt Ltd. 2013 (289) E.L.T. 3 (S.C.) The text of paras relied upon by the adjudicating authori....
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.... as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated..." 20. Coming to the c....
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....ce caused by such denial, no relief can be granted to him. The issues arising in this case are thus answered as above. 36. Having perused the impugned order passed by the 2nd respondent, prima facie, it appears to us that the basis for levying penalty against the petitioners were their statements recorded under Section 108 of the Customs Act, 1962, wherein certain confessions appear to have been made by them implicating themselves in the smuggling of cigarettes, which was subject matter of enquiry. 37. Therefore, we are of the opinion that no prejudice has been caused to the petitioners by the action of the 2nd respondent in denying an opportunity to them to cross-examine the other persons who had implicated them in the said act of smuggling. 38. We have also noticed that the petitioners were admittedly given a show-cause notice on 4-42016; they gave response there to on 2-3-2017 and 7-10-2019; and their Counsel was also given a personal hearing on 2-3-2017 and 9-10-2019. So the contention of the petitioners that there were violation of other principles of natural justice, cannot also be sustained. 39. In this view of the matter, we are not inclined to entertain t....
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....b & Haryana High Court in the case of Jindal Drugs Pvt. Ltd. [2016 (340) E.L.T. 0067 (P & H)]. Hon'ble High Court held as follows: "8. In view of the fact that the case of the petitioners is essentially premised on Section 9D of the Central Excise Act, 1944, it would be appropriate to reproduce the said provision, in extenso, thus : "9D. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank 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 regar....
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....fied in Section 9D(1), if the adjudicating authority relies on the statement, recorded during investigation in Central Excise, as evidence of the truth of the facts contained in the said statement, it has to be held that the adjudicating authority has relied on irrelevant material. Such reliance would, therefore, be vitiated in law and on facts. 13. Once the ambit of Section 9D(1) is thus recognized and understood, one has to turn to the circumstances referred to in the said sub-section, which are contained in clauses (a) and (b) thereof. 14. Clause (a) of Section 9D(1) refers to the following circumstances : (i) when the person who made the statement is dead, (ii) when the person who made the statement cannot be found, (iii) when the person who made the statement is incapable of giving evidence, (iv) when the person who made the statement is kept out of the way by the adverse party, and (v) when the presence of the person who made the statement cannot be obtained without unreasonable delay or expense. 15. Once discretion, to be judicially exercised is, thus conferred, by ....
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....(b) of Section 9D(1) is obvious. The statement, recorded during inquiry/investigation, by the Gazetted Central Excise Officer, has every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 19. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipula....
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....Bussa Overseas Properties Ltd., 2007 (216) E.L.T. 659 (S.C.), which upheld the decision of the Tribunal in Bussa Overseas Properties Ltd. v C.C., 2001 (137) E.L.T. 637 (T). 25. In the light of the above, respondent no. 2 is directed to adjudicate the show cause notice issued to the writ petitioners by following the procedure contemplated by Section 9D of the Act and the law laid down by various judicial authorities in this regard, including the principles of natural justice, in the following manner : (i) In the event that the Revenue intends to rely on any of the statements, recorded under Section 14 of the Act and referred to in the show cause notices issued to Ambika and Jay Ambey, it would be incumbent on the Revenue to apply to Respondent No. 2 to summon the makers of the said statements, so that the Revenue would examine them in chief, before the adjudicating authority, i.e., before Respondent No. 2. (ii) A copy of the said record of examination-in-chief, by the Revenue, of the makers of any of the statements on which the Revenue chooses to rely, would have to be made available to the assessee, i.e., to Ambika and Jay Ambey in this case. (ii....
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....y he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentio....
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....dealers and what extraction the appellant wanted from them." The Apex Court further held in Paragraph 7 as under : "......." 17. The authority concerned is seeking to rely upon certain statements following the various decisions of this Court, the dialect of which is not necessary and the decision of the Apex Court is sufficient enough to bring to the fore the requirement of permitting the cross-examination of witnesses whose statements are sought to be relied upon by the authorities." 4.7 Hon'ble Bombay High Court has in case of Rishabh Sanghvi [2019 (367) E.L.T. 614 (Bom.)] held as follows: "6. In this case, the statements of persons relied upon by the Revenue are not being made available for cross-examination only on account of alleged delay in making application. We are unable to understand how an application seeking crossexamination of the persons being relied upon could be rejected on account of delay in making the application when the impugned order dated 11th September, 2018 itself records that the documents relied upon in the Show Cause Notice were supplied/given to the petitioner on that day itself. Further, there is no time-limit provided in ....
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....present case it is interesting to note that the Commissioner has by the impugned order imposed penalties under Section 112 (a) and 112 (b) on the appellant and others in respect of the same offense. This only goes to show total lack of understanding of the legal provisions by the adjudicating authority. While imposing the penalties in this manner adjudicating authority has even failed to examine the legal provisions and the case law on the subject. Not a single word is recorded in the impugned order as to why penalty is imposable under Section 112 (a) and/ or section 112 (b) in the impugned order. This clearly shows that the impugned order has been passed in haste without even recording a finding on the basic issues and the legal provisions. Explaining the scope of Section 112 (a) and 112 (b) and the spheres in which these two sections operate Hon'b;le Madras High Court has in case of Visteon Automotive Systems India Limited [2018 (9) G.S.T.L. 142 (Mad.)] held as follows: "11. The provisions contained in Section 111 are clearly directed against the goods. In juxtaposition to this, under Section 112(a) of the Act, any person, who in relation to any goods, does or omits to d....