TaxTMI 
TaxTMI 
2024 (12) TMI 617
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.... 0-in-0 and direct the adjudicating authority to pass fresh order after granting the opportunity of cross examination of Shri Anurag Garg to the appellant. Consequently, the appeal is allowed and the appeal filed by the appellant is disposed of accordingly." 2.1 On specific intelligence the Officers of DRI, Lucknow intercepted a Tata Harrier SUV UP63AP1819 near Dakhina Shekhpur Toll Plaza, Raibarelly on 05.07.2022 and recovered 2150.94 gms smuggled foreign origin gold bars and 197.08 gms impure gold total valued at Rs. 1,20,40,682/- concealed in the vehicle, without any valid documents, from four persons Shri Vibhore Rastogi, Shri Nitin Kumar, Shri Prashant Maurya and Mohd Sarim Khan found in the vehicle. 2.2 Shri Vibhore Rastogi disclosed that the said gold was to be delivered to the appellant Shri Shamik alias Rishi Khanna. During follow up at the premises of Shri Rishi Khanna on 06.07.2022, foreign marked silver bullion 180.820 kgs worth Rs. 1,02,85,332/- and unaccounted Indian Rupees 1,21,00,000/- was recovered from his premises and further foreign marked silver bullion 120.000 kgs was recovered from his relatives house at Gomtinagar. 2.3 During investigation appellant....
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....ral statement of Shri Anurag Garg by the appellant is contrary to the facts on record (ii) The appellant has raised the point that the photograph of silver shown to Mr. Anurag Garg has not been made RUD by the DRI. However, the appellant is fully incorrect as the photographs shown to Shri Anurag Garg, Director of M/s Auspicious Ornaments Pvt Limited is the RUD No. 18 of the Show Cause Notice. Therefore, the party has presented wrong facts before the appellate authority. (iii) The appellant has stated that Shri Anurag Garg has informed him that his said statement was recorded by DRI under duress This fact is also totally incorrect as the entire proceedings were recorded in panchanama drawn before two independent witnesses at the shop of Shri Anurag Garg, Director of M/s Auspicious Ornaments Pvt Limited and witnesses were the office bearer of local saraffa association. Therefore, statement of Shri Anurag Garg, Director of M/s Auspicious Ornaments Pvt Limited was recorded under duress is wrong submission of the appellant at appellate stage of the case. No retraction of statement as tendered by Shri Anurag Garg dated 12.07.2022 was received during investigati....
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....t the decision of the adjudication authority Therefore, the Commissioner (Appeals) erred in citing Section 138B for holding that cross-examination is necessary during adjudication proceedings. Following case laws related to cross-examination are relied • Kanungo Company - [1983(13)ELT 1486 2 (SC)] • Lucky Dyeing Mills Pvt. Ltd. [2208 (222) ELT 543 (Tri- Ahmed)] • Fortune Impex [2001(138) E.L.T.556 (Tri. -Kolkata)], affirmed by Hon'ble Supreme Court - [2004 (164) E.L.T. 4 (S.C.) & 2004 (167) E.L.T.A. 134 (S.C.) • Dipu Das [ 2010(261) ELT 408 (Tri-Del)], • Sridhar Paints [2006(198) ELT 514 (Tri-Bang)] • Jagdish Shankar Trivedi [2006 (194) ELT 290 (Tri. Delhi)] These case laws clearly establish that cross-examination cannot be claimed as a matter of right and denying the same is not violation of principles of natural justice. Hence, the observation of the Hon'ble Commissioner (Appeals) that the adjudicating authority be directed to pass fresh order after affording the appellant opportunity of cross examination of Mr. Anurag Garg is not correct (v) Smuggling of foreign origin Gold an....
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....t it could be established whether the statements recorded from the said witnesses have been voluntarily given and/ or are relevant for the issue or based on personal knowledge or hearsay and the like, The object, being that a Tribunal or Court conducting a proceeding either before the Court or quasi judicial tribunal in adjudication, must have the true evidence and shift the evidence to weed out the chaff from the grain. Another reason being to satisfy itself that the person whose statement was recorded had made it voluntarily and based on his personal knowledge or legal records which can come out in cross-examination. This is to ensure the Court or Tribunal or the authority conducting the proceeding arrives at the correct conclusion based on tested evidence before it. The issue also is no longer res integra in view of the large number of judgements of the Supreme Court 16. We, therefore, have no hesitation in holding, that there is no requirement in the Act or Rules, nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon to issue the show cause notice, are liable to be examined at that stage. If the....
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.... Accordingly, a Show Cause Notice vide F No DRI/LZU/GI-26/Enq-26(Int-0)/2022 dated 22.12.2022 was issued to i. Shri Vibhore Rastogi, ii. Shri Nitin Kumar, iii. Shri Prashant Maurya, iv. Mohd Sharim Khan, v. Shri (Shammik Khanna alias) Rishi Khanna, vi. Shri Neeraj Agarwal, vii. Shri Aditya Khanna, viii. Shri Ramesh Kumar Khanna, ix. Shri Jagdish Naryan Puri, x. Smt Tripti Khanna & xi. Other unknown persons,..." Shri Anurag Garg whose statement has been relied upon while issuing the notice cannot fall under the category of "other unknown person" as he was available during investigation. 4.4 Respondent had requested for the cross examination of Shri Anurag Garg and it has not be allowed by the original authority and he has placed reliance on the decision of Hon'ble Supreme Court in case of Naresh J Sukhwani. Evidently the case of Naresh J Sukhawani [1996 (83) E.L.T. 258 (S.C.)] was in relation to the steatement of co-noticee whereby co-noticee has in his statement implicated himself while stating the facts about the main accused. The relevant excerpts are reproduced below: "3. The Joint Secretary to the Government, the revisional authority, has held that the eviden....
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.... the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646, decided by a two-Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediater) witnesses for cross-examination contending that reliance on the statements of those witnesses without opportunity to cross-examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that "the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and....
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....totality of the facts and circumstances would be taken into account. On a consideration of the evidence, the High Court accepted that Ex. P-4 is a voluntary and true confessional statement and accordingly it convicted the appellant of the offences. It is seen that Ex. P-4 was given in furtherance of the statutory compulsion and the appellant made statement in unequivocal terms admitting the guilt. It is seen that in Barkat Ram's case, this Court accepted the retracted confessional statement and upheld, on that basis, the conviction. In Vallabhdas Liladhar's case and also in Rustom Das's case the retracted confessional statement found basis for conviction and in the latter the recoveries were relied as corroborative evidence. In Haroom Abdulla's case, this Court used the evidence of co-accused as corroborative evidence." 4.6 In acse of Andaman Timber Industries [2015 (324) E.L.T. 641 (S.C.)] Hon'ble Supreme Court stated as follows: "6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inas....
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....e cross examination of all the person whose statement had been recorded has been asked for. The relevant para of the decision of Hon'ble Apex Court is reproduced below: 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show cause notice issued on August 21, 1961, all the materials on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do no require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant. This case was distinguished by Hon'ble Orissa High Court in case of KAY PAN SUGANDH PVT. LTD [2017 (7) G.S.T.L. 276 (Ori....