2023 (6) TMI 597 - AT - Customs

Violation of principles of natural justice - Confiscation - gold bar weighing 1 kg - Department has not adduced proper evidence towards Delivery of the Gold - non-allowing of cross-examination of Sri Siddhart Mehta, Authorized Signatory and Accountant of JJ House - HELD THAT - It is seen that the Appellant has not been given proper opportunity to defend his case. They were not allowed to cross-examine the crucial witness i. e. Mr. Siddharth Mehta, Accountant and Signatory of M/s J. J. House Pvt. Ltd. Whose recorded statement is relied upon to place emphasis that the gold was delivered to the Appellant only on 18/11/2017. It is seen that even the statement of Mr. Sripada Barik was retracted by him. In such circumstances, it is felt that the matter is required to be re-visited at the Adjudication level. The matter is being remanded to the Adjudicating Authority for the limited purpose to consider the following - (i) The Appellant s should be given an opportunity to cross-examine Shri Siddhartha Mehta, Manager of J. J. House Pvt. Ltd. (ii) The Appellant should be given the details of delivery of goods by Brinks India to the Appellant No.2 after the invoice was prepared by J. J. House Pvt. Ltd. on 17/11/2017 from Brink India s Records. Appeal allowed by way of remand.

Summary

Issues involved:
The issues involved in this case are the confiscation of a gold bar under Section 111(b) & (d) of the Act, imposition of penalty under Section 112(b) of the Act, and the denial of proper opportunity to defend the case by not allowing cross-examination of a crucial witness.

Confiscation and Penalty:
The Appellant, engaged in the purchase, manufacturing, and sale of jewelry, procured a gold bar with a purity of 995 fineness. The gold bar was seized by officers during an investigation, leading to a Show Cause Notice for confiscation and penalty. Despite submitting documents supporting the legal procurement of the gold bar, the authorities confirmed the confiscation and penalty. The Appellant appealed, arguing that the Department lacked proper evidence of the gold delivery and did not allow cross-examination of key witnesses. The Adjudicating Authority found that the Appellant was not given a fair opportunity to defend the case and remanded the matter. The Adjudicating Authority directed cross-examination of the crucial witness and obtaining details of the gold delivery, emphasizing the importance of natural justice in the proceedings.

Cross-Examination and Evidence:
The Appellant contended that the Department relied on statements without providing documentary evidence of gold delivery. The Appellant's representative highlighted the lack of evidence from Brinks India confirming the gold's delivery to the Appellant on a specific date. The Department, on the other hand, presented documentary evidence showing the gold's movement and delivery to the Appellant. The Adjudicating Authority noted the importance of allowing cross-examination to ensure a fair trial. The Adjudicating Authority emphasized the need for proper evidence and cross-examination to establish the timeline of events regarding the gold bar's procurement and delivery.

Remand and Procedural Fairness:
After reviewing the case records, it was observed that the Appellant was not afforded a proper opportunity to defend the case. The Adjudicating Authority acknowledged the lack of cross-examination of a crucial witness and the retraction of a statement by another individual. As a result, the matter was remanded for further proceedings to ensure procedural fairness. The Adjudicating Authority directed the cross-examination of the witness and obtaining delivery details from Brinks India. The importance of adhering to principles of natural justice in the adjudication process was underscored, with a directive to complete the proceedings promptly.