AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 822
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....23 at around 03.30 Hrs waited at Kalaparru Toll Plaza, NH16, Kalaparru, Eluru. The Officers stopped the said Bus and identified the person, Shri Bommakanti Srinivasarao. On being specifically enquired by the Officers, Shri Bommakanti Srinivasarao admitted that he was carrying gold concealed in inner pocket of his pants. During enquiry, he took out a newspaper wrapped pocket containing a heavy object said to be gold and placed on the table before the Officers. The Officers found four pieces of rough rectangular shaped bars of yellow coloured metal. The Officers observed that out of the four pieces, three big pieces were rough rectangular shaped yellow coloured metal with marking "卐999" in a triangular ring and remaining one piece had no proper marking. Shri Bommakanti Srinivasarao informed the Officers that he was not having any documents/invoices/bills in respect of this gold as this was illegally imported gold of foreign origin. He further admitted that he was knowingly involved in dealing with legally imported gold of foreign origin that it is offence under the provisions of the Customs Act, 1962. Thereafter the officers, on reasonable belief that the gold possessed by Shr....
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....ld and the source from which the gold was procured, the Department had ample reasonable belief that the gold confiscated was of foreign origin, in terms of Section 123 of the Customs Act, 1962. The burden of proving that the seized gold was of licit in nature lies on the respondent. Cross examination of the witness / panchas is not required as the same were independent people and not related to the Department or the noticee. No any threat or duress was brought by anyone. 8. Learned AR argued that the findings of the Commissioner (Appeal) Guntur is not legal and proper as there is no reason provided for the conclusion. The case laws mentioned in the last para of the Order-In-Appeal appear to be related mainly to the matters of cross examination of witnesses, statements being recorded by keeping the accused under duress and the allegations that the investigation did not have ample proof of seized gold being of foreign origin. 9. Department relied on the following case laws: i) Om International Vs CC, New Delhi [2007 (217) ELT 88 (Tri. Del)] ii) Liyakat Shah Vs Commissioner of C.Ex., Indore-II (Bhoopal) [2000 (120) E.L.T.556 (Tribunal)]. iii) M. Patel ....
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....t to cross-examination is not an absolute right and the question is that whether the Noticees are entitled to grant cross-examination or not. I found that it is not a legal requirement that the witnesses or Panchas shall be the known ones to the Noticee. It is pertinent to mention here that the legal requirement is Panchas shall be the independent and being independent means not related to both the sides, Not connected to both the sides, Not influenced by both the sides, free from control by both the sides and capable of thinking or acting for oneself. Also, I found that the Noticees have produced,(neither before the investigating authorities not before the adjudicating authority), any substantial evidences proving that the contents of the panchanama were incorrect or the statements were recorded under threat or duress. Further, I found from the statement deposed by Shri Bommakanti Srinivasarao on 08.05.2023 he admitted that the contents of the panchanama and his statement dated 08.04.2023 are correct and true and drawn/recorded in the presence of two independent witnesses." Therefore Learned Adjudicating authority decided without any evidence or without giving opportunity of cr....
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....ed to violation of principles of natural justice because of which the assessee was adversely effected". Learned AR for the Appellant also relied on Supreme Court judgement in the case of Lakshman Exports, supra, in which Hon'ble Supreme Court held that "the right of cross-examination of the noticee and allowed the appeals and remanded the matter to the original authority, by setting aside the orders of the court below". Hon'ble Supreme Court in the case of Arya Abushan Bhandar, supra, held that "Production of witnesses for cross-examination though asked for was not allowed, thereby leading to a clear breach of natural justice." Holding thus, the appeal of the noticee was allowed. 18. In view of the above, as held by Hon'ble Supreme Court in so many cases that right of cross-examination from the witnesses is very important right and without giving opportunity to cross-examination those witnesses were made the basis of impugned order is a serious flaw. 19. Respondent has not admitted statement as written by Department Officer and also denied to sign the papers Section 138B of the Customs Act provides as under: "138B. Relevancy of statements under certain circumstances ....