TaxTMI 
TaxTMI 
2023 (12) TMI 12
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....(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), Droupadi Ghat, P.S.- Sadar Bazar Cantonment, Allahabad, Uttar Pradesh; (vi) ....
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.... 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 Act, 1962, for the reasons discussed in the show cause notice. 2.5 The show cause notice has been adjudicated as per the impu....
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....aluer 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/records available withem was not atken into consideration by the DRI Officers. Shri Rajat Gupta of M/s Girraj Ji Jewellers in his voluntary statement recorded under Section 108 of the Act has accepted of selling 05 Gold Bars under invoice 13 dated 30.06.2021 to Noticee No.3 which Noti....
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....he 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, there was no necessity for permitting their cross-examination" Accordingly, in the light of judgment of case laws as detailed supra, I donot find any merit to allow request of cross-examination as made by the Noticee. 12.IV. The Hon'ble Apex Court in case of M/S. Telestar Travels Pvt. Ltd. & ... vs Special Director Of Enforcement on 13....
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....r 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-examination by the petitioner." (emphasis supplied) 33. Thus the Supreme Court in Surjeet Singh Chhabra (3 supra) indicated that it is also necessary to consider the question of prejudice to the party who complains of denial of right to cross examine the witnesses, and in cases where there is a confession, such denial is justified and no prejudice can be pleaded by such party. 34. This was reiterated by the Supreme Court i....
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....d 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 submit their defence replies as well as providing them further opportunities by way of fixing dates of personal hearing in this regard. The cross examination of Shri rajat Gupta is being sought by the Noticee No 03 on account of his voluntary statement tendered before the officers under section 108 of the act, wherein he has categorically submitted that the gols supplied by him does not bear any mark, number itself which is contradictory to the afcts and claim of Noticee No 03 that the se....
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.... 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 relevant is reproduced below: "9. As noted above, all the noticees including the appellants were informed about all the material which was sought to be relied on against them along with the relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the proceedings. Statements of the two drivers of the vehicles from which contraband si....
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....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 authority is reproduced below: "11. The Tribunal has relying upon the decision of this Court in K.T.M.S. Mohd. v. Union of India - (1992) 3 SCC 178, K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin - (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.) held that retracted statements could furnish a sound basis for recording a finding against the party making the statement. There is, in that view, no gainsaying that the Adjudicating Authority and the Appellate Tribunal have both correctly appreciated the legal position and applied the sam....
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....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 case at hand, the Adjudicating Authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants the Adjudicating Authority also placed reliance upon documents produced by Miss Anita Chotrani and Mr. Raut. These documents were, it is admitted disclosed to the appellants who were permitted to inspect the same. The production of the documents duly confronted to the appellants was in the nat....
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....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 this Writ Petition. 40. We accordingly dismiss this Writ Petition at the admission stage as not maintainable, giving liberty to the petitioner to avail the alternative remedy of Appeal under Section 129A of the Customs Act, 1962. 41. We clarify that we have not expressed any opinion on the merits of the claims of the petitioners and whatever observations have been made by us are only for the purpose of disposal of this Writ Petition and cannot be treated as conclusive; and if any such appeal is preferred by the petitioners, the same shall be decided by the Appellate Authori....
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....ecution 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 provision of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court." 9. A plain reading of sub-section (1) of Section 9D of the Act makes it clear that clauses (a) and (b) of the said sub-section set out the circumstances in which a statement, made and signed by a person before the Central Excise Officer of a gazetted rank, during the course of inquiry or proceeding under the Act, shall b....
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....e 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 Section 9D, on the adjudicating authority, it is selfevident inference that the decision flowing from the exercise of such discretion, i.e., the order which would be passed, by the adjudicating authority under Section 9D, if he chooses to invoke clause (a) of sub-section (1) thereof, would be pregnable to challenge. While the judgment of the Delhi High Court in J&K Cigarettes Ltd. (supra) holds that the said challenge could be ventilated in appeal, the petitioners have also invited attention to an unreported short order of the Supreme Court in UOI and Another v. GTC India and Others in SLP (C) No. 2183/1994, dated 3-1-1995 wherein it was held that the order passed by the adjudicating authority under Section 9D of the Ac....
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....ngs, 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 stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice. 20. In fact, Sec....
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....he 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. (iii) Statements recorded during investigation, under Section 14 of the Act, whose makers are not examined-in-chief before the adjudicating authority, i.e., before Respondent No. 2, would have to be eschewed from evidence, and it would not be permissible for Respondent No. 2 to rely on the said evidence while adjudicating the matter. Neither, needless to say, would be open to the Revenue to rely on the said statements to support the case sought to be made out in the show cause notice. (iv) Once examination-in-chief, of the makers of the statements, on whom the Revenue seeks to rely in adjudication proceedings, takes place, and a copy thereof is made available to the assessee, it would be open to the assessee to seek permission to cross-examine the persons who have made the said statements, should it choose to do so. In case any suc....
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....ny 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 mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the crossexamination and make the remarks as mentioned above. ..." 4.6 Relying upon this decision Hon'ble Gujarat High Court has in case of Rajputana Stainless Ltd. [2023 (384) E.L.T. 300 (Guj.)] held as follows: "15. With regard to the cross-examination of the names of the witnesses which were required to be cross-examination, will need to be dealt with by the officer concerned when the matter is remanded for the purpose of adjudication afresh from the stage where it was left. It is required to be remanded to the officer concerned. 16. The Apex Court in the case of Andaman Timber Industries v. Commissioner of C. Ex., Kolkata-II, reported in CDJ 2015 SC 1277 =....
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....ng 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 the Act for completion of adjudication proceedings as its object is as to ensure that justice is done to the parties. In fact, the Supreme Court in Andaman Timber Industries (supra) and this Court in Kalpana Industries Ltd. (supra) had held that in the absence of an opportunity to being given to the petitioner to cross-examine the person on whose statement the Revenue is relying upon would render the order bad." 4.8 Hon'ble Allahabad High Court has in case of Hindustan Mint & Agro Products P. Ltd. [2017 (346) E.L.T. 206 (All.)] held as follows: "5. The request for cross-examination has been considered by the adjudicating authority in a cursory manner. The Supreme Court in Andaman Timber Industries (supra) in Paragraph 6 dealt with the issue relating to cross-examination of witnesses by the assessee. 6. In the facts and circumstances of the case, it would be appropriate for the ....