2016 (4) TMI 363 - HC - Customs

Whether the Tribunal erred in relying upon the statement of one Sundaram when the said statement was not made available to the appellants either through the show cause notice or during the proceedings before the learned Collector (Appeals) - Seizure conducted on 16.6.1992 in the business premises of the assessee by name T.R.Nanniar (who is now no more) and seized 6 silver ingots weighing 19.165 kilograms, on a reasonable believe that the same was smuggled. A statement was recorded from T.R.Nanniar on 16.6.1992 under section 108 of the Customs Act, 1962. Held that - Before proceeding with the questions of law referred to us by the Tribunal for our consideration, it is necessary to take into two important developments. The first is that the appellant is no more. The second is that the party, whom the appellant wanted to cross-examine, viz., Sundaram is also no more. The appellant did not ask for cross-examination of Sundaram. The seizure took place about 24 years ago. The reference itself was of the year 2000. Today, even if the contention that Sundaram ought to have been produced for cross-examination is upheld, the matter has to be remitted back, but, it is impossible to produce Sundaram for cross-examination. Therefore, taking into account the developments and also taking into account the admission made by Nanniar, the Tribunal did not commit any mistake in relying upon the statement. - Decided against the appellant

Summary

Issues:
1. Whether reliance on a statement not made available to the appellants violates principles of natural justice?
2. Whether non-supply of a statement for cross-examination violates principles of natural justice?

Analysis:
Issue 1: The case involved a search conducted by Customs Preventive Unit resulting in the seizure of silver ingots from the business premises of the assessee. A statement was recorded from the individual related to the seized items, which was later retracted. Despite the absence of cross-examination of the individual, the Tribunal relied on the statement. The Tribunal's decision was challenged on the grounds of not providing the statement to the appellants, raising concerns about natural justice principles. However, due to the unavailability of the appellant and the individual in question, the Court found that the Tribunal did not err in relying on the statement, ultimately ruling against the appellants.

Issue 2: The second issue revolved around the non-supply of the statement for cross-examination during the proceedings before the Collector (Appeals). The Tribunal's decision to not provide the statement for cross-examination was contested, arguing a violation of natural justice principles. The Court noted that even though the appellant did not request cross-examination of the individual in question, the plea for release of the silver on payment of redemption fine was made. Considering the significant time elapsed since the seizure and the reference, the Court concluded that it was impractical to produce the individual for cross-examination. Therefore, the Court upheld the Tribunal's decision, answering the questions of law against the appellants and in favor of the Department.

In summary, the Court upheld the Tribunal's decision in both issues, emphasizing the impracticality of producing the individuals for cross-examination due to the significant time elapsed since the seizure. The Court found no error in the Tribunal's reliance on the statement and concluded that the questions of law were answered against the appellants.