2019 (1) TMI 1868 - HC - Customs

Smuggling - Gold - inability of the respondent to present coaccomplice who have given statement examination for cross examination by the petitioner - HELD THAT - In the present case, the 1st respondent has relied on the statements of appellant and co-accomplices while passing Order in Original. They are his employees and partners and partner s brother who are either absconding or are not traceable and cannot be produced for cross examination - They have reportedly retracted their statements recorded under Section 108 of the Act though some of them have withdrawn their retractions and have stated that their original confessions to be true in their later statements. From the order impugned in the writ petition, it appears that certain admissions appears to have been made by the appellant relating to his involvement in which case there would be no necessity to cross examine the co-notices. However there are no documents produced. Even if produced, we would have refrained from dissecting them while examining the order of the Single Judge - Therefore, denial of cross-examination of co-accomplice who have allegedly retracted their statements is of no consequence as far as the appellant is concerned. An order of a quasi judicial officer is sustainable if the finding arrived therein are based on preponderance of probability and other overall evidences and documents on record. Whether the finding arrived in the impugned order is solely based on the statements of co-accomplices or based on preponderance of probability or not is something which can be examined only before the Appellate Commissioner and not in a writ proceeding - Scope of writ petition and the extent to which courts can interfere under Art. 226 is limited. The appellant should therefore explore options before the Appellate Commissioner and place all legal and factual submissions there. The remedies sought for by the appellant before this Court is available to him before the Appellate Commissioner. The Appellate Commissioner can on proper examination of records can come to a just conclusion. As the jurisdiction to interfere is very limited, we would not like to pass orders on merits particularly in view of the statements which appears to have been given by the appellant before the 2nd respondent during investigation - appeal dismissed.

Summary

Issues Involved:
1. Violation of principles of natural justice by not producing witnesses for cross-examination.
2. Legitimacy of the impugned Order in Original No.TCP/Cus.PRV/JTC/055-17.
3. Appellant's right to appeal before the Appellate Commissioner.

Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellant argued that the impugned order was passed in gross violation of the principles of natural justice, as the individuals whose statements were relied upon in the show cause notice were not produced for cross-examination. These individuals included the appellant's partners, former employees, and the brother of a partner, who had allegedly facilitated the smuggling of gold. The appellant's counsel cited several precedents, including *Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata-II (2016) 15 SCC 785*, where the denial of the right to cross-examine was deemed untenable. However, the court noted that the appellant had made certain admissions regarding his involvement, which diminished the necessity of cross-examining the co-accomplices.

2. Legitimacy of the Impugned Order:
The impugned order imposed penalties and ordered confiscation of goods under Sections 111 (a), (d), (e), 112, and 119 of the Customs Act, 1962. The statements of the co-accomplices were recorded under Section 108 of the Customs Act, and some had retracted their statements only to later affirm them. The court emphasized that in quasi-judicial proceedings, strict rules of evidence do not apply, and decisions can be based on the preponderance of probability and available evidence. The court also referred to several Supreme Court judgments, including *Surjeet Singh Chhabra v. Union of India (1997) 1 SCC 508*, which held that a confession, even if retracted, binds the confessor and does not necessarily require cross-examination of witnesses.

3. Appellant's Right to Appeal:
The court held that the appellant has an effective remedy by way of appeal before the Appellate Commissioner. The Appellate Commissioner can examine the records and come to a just conclusion. The court emphasized that the scope of interference under Article 226 is limited and that the appellant should place all legal and factual submissions before the Appellate Commissioner. The court dismissed the writ appeal, giving the appellant liberty to file an appeal within two months from the date of the order.

Conclusion:
The court dismissed the writ appeal, affirming that the appellant should explore the remedy of appeal before the Appellate Commissioner. The court concluded that the denial of cross-examination did not vitiate the impugned order, especially given the appellant's own admissions. The court also noted that quasi-judicial proceedings are not bound by strict rules of evidence and can rely on the preponderance of probability. The appellant was given liberty to file an appeal within two months.