TaxTMI 
TaxTMI 
2026 (7) TMI 596
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.... by the penalty of Rs.30,00,000 imposed on him. His appeal before the Commissioner (Appeals) came to be dismissed. Being aggrieved, the appellant is before the Tribunal. 2. The Learned Counsel appearing for the appellant makes the following submissions: 3. The statements of Kartik Sen, who was in possession of the gold pieces, was recorded on 13.01.2018 and 14.01.2018, who has stated that the present appellant, Bapi Das was introduced by one Balui and after that Kartik Sen started carrying the smuggled gold and such activities have been undertaken on several occasions. [Copy enclosed in the Appeal paper book] 4. The statement of Shri Balui was recorded on 12.02.2018, wherein Shri Balui has stated that he never knew the appellant or that he has never introduced the appellant to Shri Sen. [Copy enclosed in the Appeal paper book] 5. The DRI issued summons to the appellant to appear before the authority on 7.07.2018. The appellant duly complied with the summons and appeared before the authority. [Copy enclosed in the Appeal paper book] 6. The appellant in his statement dated 07.07.2018 has stated that he knew Kartik Sen since about 12 years and he has introduced him to B....
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....evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom. A confession purported to have been made before an authority would require a closure scrutiny. It is therefore, now well settled that the Court must seek corroboration of the purported confession from independent sources. ii) Prakash Kumar Vs. State of Gujarat- (2007) 4 SCC 266 . The confession of co-accused by itself is not sufficient to hold the other accused guilty. It has been held repeatedly by this Court that the confession of a co-accused is a fragile and feeble type of evidence and it could only be used to support the other evidences, if any, adduced by the prosecution. iii) Assistant Collector of Customs Vs. Amrik Singh 2014 (301) ELT 170 (P&H) . The question arises whether the admission of co-accused under Section 108 of the Customs Act can be basis of conviction of other caucused. The Ld. Trial Court has rightly held that statement of caucused under Section 108 of the act against the co-accused with a weak type of evidence and conviction o....
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....ale behind the mandate contained in Section 9D of the Central Excise Act, 138B of the Customs Act, 1962 has been extensively discussed and prescribed. 15. The appellant submits that the Adjudicating Authority, therefore, should follow the procedure to rely on the statement as relevant for proving the truth of the contents of the statement, to admit the statement in evidence. In this case, the said mandate has not been followed and hence the statement of the co-accused in this case cannot be said to be voluntary and his statement also cannot be said to be true and correct and shall not be taken as evidence. 16. The connection between the Appellant and Shri Kartik Sen was a phone number. Mr. Sen was told to call the Appellant in the phone number 8972746145. On verification, the phone number was found to be registered in the name of Miss Bali Bor. So, on the basis of these evidences alone it cannot be concluded that Mr. Sen was carrying the gold for the Appellant. 17. Further Shri Sen, in his statement alleged that he used to collect gold from Ranaghat to Kolkata from one person named Bharat Biswas having number 87680778863 as directed by the appellant. Later on the basis of ....
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....d on the appellant. 22. The Ld A R appearing for the Revenue submits it is on record that the carrier of the gold Kartik Sen has clearly stated that it was the appellant Bapi Das, who has introduced him to the suppliers of the smuggled gold and made him carry the same on regular payment being made on trip-wise basis. It is also on record that the phone call details between the appellant, Kartik Sen and Biswas establishes that all the three were in regular touch for carrying out the transactions. The Ld AR relies on the detailed findings of the lower authorities and justifies the penalty imposed on the appellant. 23. Heard both the sides and perused the appeal papers and documents produced before me. 24. Admittedly, Kartik Sen, who is the carrier of 40 pcs of gold was intercepted and the gold was recovered from his possession. After due process, the gold in question valued at Rs.1,50,00,000 has been confiscated absolutely and there is no claimant towards the ownership of the same. From the records it is seen the other noticees have not even filed any appeal before the Commissioner (Appeals). Hence, even their appeals are not before the Tribunal. Thus the only appeal is that....
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....hil Bauli in no way implicates the appellant. (c) The statement of the appellant recorded on 07.07.2018 loses its evidentiary value by the fact that the same was retracted on the very next day before the Magistrate in the presence of the DRI officials. 36. Therefore, the Revenue could not have gone ahead with their proceedings with such flawed recorded statements, which would finally prove fatal to the Revenue's case. 37. Adding fuel to the fire situation is the fact of not subjecting even the three persons recording the statement to the procedure prescribed under Section 108 of the Customs Act. The High Courts and Tribunals time and again consistently have held that the persons recording the statements before the Gazetted officers of the Department, have to once reiterate the same before the Adjudicating authority to the effect that such statements were given by them without any force or coercion. 38. In the case of G-Tech Industries Vs. Union of India-2016 (339) E.L.T. 209 (P&H) has held as under:- 3. The petitioner seeks, by means of the present writ petition, to challenge Order-in-Original No. V(29)15/ce/Commr.Adj/Chd-II/44/2015, dated 4-4-2016 issued....
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....e Act came in from detailed consideration and examination, by the Delhi High Court, in J.&K. Cigarettes Ltd. v. CCE, 2009 (242) E.L.T. 189 (Del.) = 2011 (22) S.T.R. 225 (Del.). Para 12 of the said decision clearly holds that by virtue of sub-section (2) of Section 9D, the provisions of sub-section (1) thereof would extend to adjudication proceedings as well. 7. There can, therefore, be no doubt about the legal position that the procedure prescribed in sub-section (1) of Section 9D is required to be scrupulously followed, as much in adjudication proceedings as in criminal proceedings relating to prosecution. 8. As already noticed herein above, sub-section (1) of Section 9D sets out the circumstances in which a statement, made and signed before a Gazetted Central Excise Officer, shall be relevant for the purpose of proving the truth of the facts contained therein. If these circumstances are absent, the statement, which has been made during inquiry/investigation, before a Gazetted Central Excise Officer, cannot be treated as relevant for the purpose of proving the facts contained therein. In other words, in the absence of the circumstances specified in Section 9D(1),....
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....t could be challenged in writ proceedings as well. Therefore, it is clear that the adjudicating authority cannot invoke Section 9D(1)(a) of the Act without passing a reasoned and speaking order in that regard, which is amenable to challenge by the assessee, if aggrieved thereby. 13. If none of the circumstances contemplated by clause (a) of Section 9D(1) exists, clause (b) of Section 9D(1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be admitted in evidence. Under this procedure, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D(1), viz. (i) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the adjudicating authority has, thereafter, to form the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. 14. There is no justification for jettisoning this procedure, statutorily prescribed by plenary parliamentary legislation for admitting, into evidence, a statement recorded before t....
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....ests of justice. 17. 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. 18. 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. 19. Clearly, if this procedure, which is statutorily prescribed by plenary parliamentary legislation, is not followed, it has to be regarded, that the Revenue has given up the said witnesses, so that the reliance by the CCE, on the said statements, has to be regarded as misguided, and the said statements have to be eschewed from consideration, as they would not be relevant for proving the truth of the contents thereof. 20. Reliance may also usefully be placed on Para ....
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....ments, 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. (iii) Statements recorded during investigation, under Section 14 of the Act, whose makers are not examination-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....
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....guards to the concerned person to ensure that the statement so recorded, which is admissible in evidence, can meet the standard of basic judicial principles and natural justice. It is axiomatic that when a statement is admissible as a piece of evidence, the same has to conform to minimum judicial standards. Certainly a statement recorded under duress or coercion cannot be used against the person making the statement. It is for the adjudicating authority to find out whether there was any duress or coercion in the recording of such a statement since the adjudicating authority exercises quasi-judicial powers. 41. Admittedly, in the present case, the initial statement recorded by the appellant implicating himself in the allegation contravention, has been retracted before the Magistrate on the very next day. Therefore, as per the ratio of the above Supreme Court decision, the statement of the appellant given on 7.7.2018, could not have been used against him. 42. Coming to the reliance placed on the statement of the co-noticee, the Hon'ble Supreme Court in the case of MOHTESHAM MOHD. ISMAIL Vs SPL. DIRECTOR, ENFORCEMENT DIRECTORATE 2007 (220) E.L.T. 3 (S.C.) [09-10-2007], has held ....