2024 (12) TMI 617 - AT - Customs

Confication of recovered contrabend and vehicle - levy of penalty - Violation of principles of natural justice - denial of cross-examination - whether cross objection sought by the appellant during adjudication proceedings should have been granted by the adjudicating authority or not? - HELD THAT - 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. SUKHAWANI VERSUS UNION OF INDIA 1995 (11) TMI 106 - SUPREME COURT . Evidently the case of Naresh J Sukhawani 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 - Thus the said decision s clearly distinguishable and cannot be applied to present set of facts. In case of KI. PAVUNNY VERSUS ASSTT. COLLR. (HQ.) , C. EX. COLLECTORATE, COCHIN 1997 (2) TMI 97 - SUPREME COURT Hon ble Supreme Court after considering the decision in case of Naresh Sukhawani has observed that 'On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis for conviction. The Magistrate had dwelt upon the controversy, no doubt on appreciation of the evidence but not in proper or right perspective. Therefore, it is not necessary for the learned Judge of the High Court to wade through every reasoning and give his reasons for his disagreement with the conclusion reached by the Magistrate.' The matter remanded back to original authority for reconsideration of matter in case of respondent after allowing the cross examination of Shri Anurag Garg, Director of M/s Auspicious Ornaments. There are no error in the direction given by the first appellate authority for which the revenue is aggrieved and have filed this appeal. Appeal filed by the revenue is dismissed.

Summary

Issues Involved:

1. Violation of principles of natural justice due to denial of cross-examination.
2. Reliance on statements recorded under Section 108 of the Customs Act.
3. Applicability of Section 138B of the Customs Act regarding the relevancy of statements.
4. Confiscation of goods and imposition of penalties based on evidence and statements.
5. Economic implications of smuggling and its impact on the Indian economy.

Detailed Analysis:

1. Violation of Principles of Natural Justice:

The primary issue in this case revolves around whether the adjudicating authority violated the principles of natural justice by denying the appellant the opportunity to cross-examine Mr. Anurag Garg, whose statement was pivotal in the proceedings. The Commissioner (Appeals) held that the adjudicating authority's decision to deny cross-examination was against the principles of natural justice and Section 138B of the Customs Act. The Tribunal upheld this view, emphasizing that cross-examination is essential to test the veracity of statements relied upon in adjudication, as established in various judgments, including the Allahabad High Court's ruling in the Parmarth Iron Pvt. Ltd. case.

2. Reliance on Statements Recorded under Section 108 of the Customs Act:

The appellant argued that the adjudicating authority relied heavily on the statement of Mr. Anurag Garg, recorded under Section 108 of the Customs Act, to confiscate the goods and impose penalties. The revenue contended that this statement was a material piece of evidence, as per the Supreme Court's ruling in Naresh J. Sukhawani vs Union of India, which allows such statements to be used substantively. However, the Tribunal noted that the denial of cross-examination rendered the reliance on this statement questionable, aligning with the principles laid out in Andaman Timber Industries, where the Supreme Court emphasized the necessity of cross-examination when statements form the basis of an order.

3. Applicability of Section 138B of the Customs Act:

Section 138B pertains to the relevancy of statements made before customs officers. The Tribunal highlighted that for a statement to have conclusive evidentiary value, it must be tested through cross-examination during adjudication proceedings. The Commissioner (Appeals) had erred in not allowing cross-examination, which was deemed necessary to uphold the principles of justice. The Tribunal supported this view, referencing the Allahabad High Court's judgment, which mandates cross-examination when statements are relied upon in adjudication.

4. Confiscation of Goods and Imposition of Penalties:

The adjudicating authority had confiscated the smuggled goods and imposed penalties based on the statement of Mr. Anurag Garg and other corroborative evidence. The revenue argued that there was sufficient evidence beyond Mr. Garg's statement to justify the confiscation and penalties. However, the Tribunal found that the denial of cross-examination undermined the adjudication process, necessitating a remand for a fresh order after allowing cross-examination, as directed by the Commissioner (Appeals).

5. Economic Implications of Smuggling:

The judgment also touched upon the broader economic implications of smuggling, as highlighted by the revenue. The Tribunal acknowledged the detrimental effects of smuggling on the Indian economy, citing the Supreme Court's observations in State of Gujarat Vs Mohanlal Jitamalji Porwal & Anr, which emphasized the severe consequences of economic offenses. However, the Tribunal maintained that procedural fairness, including the right to cross-examination, must not be compromised even in cases involving serious economic offenses.

Conclusion:

The Tribunal dismissed the revenue's appeal, upholding the Commissioner (Appeals)'s decision to set aside the original order and remand the case for fresh adjudication after allowing cross-examination of Mr. Anurag Garg. The Tribunal emphasized the importance of adhering to principles of natural justice and procedural fairness, particularly the right to cross-examine witnesses whose statements are relied upon in adjudication proceedings.