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TMI Blog1999 (12) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 180 gold bars weighing 2098 gms valued in the local market at Rs. 73.45 lakhs approximately. The officers seized the gold. They also seized some documents, visiting cards, phone numbers and portion of a Rs. 500/- currency note. They questioned Gandhi and recorded his statement under section 108 of the Act. Gandhi admitted the recovery of the gold. He said that he had carried it on to earn money, in the orders of Mohammed Islam, a national of United Arab Emirates. The gold was to be delivered to Suresh Jain or a person to be sent by him, to be identified by producing the remaining portion of the Rs. 500/- note of which part was in his possession. He said that this portion of currency note had earlier been given by Suresh Jain to him, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative s answer to this is that it has not been established that Gandhi retracted his statement when he was produced before the Magistrate on 22-5-1990. It is contended that the only evidence relied upon by the appellant is a typed copy of what appears to be an application made before the Additional Chief Metropolitan Magistrate in which Gandhi has stated to have been retracted his statement on the ground that it was obtained by beating him up and that it is not authenticated. The fact that the document was produced by Jain in the adjudication proceeding before the Additional Collector, it was argued, implicated him as being involved - how else could he have hold of it? This point of the departmental representative has to be admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Properties Pvt. Ltd. v. Commissioner - 1997 (20) RLT 599, Arsh Castings Pvt. Ltd. v. CCE - 1996 (81) E.L.T. 276, Haroon Rashid M. Gani v. Commissioner unreported appeals CD-292/86 and 311/ 86 in support. He says that the Calcutta High Court judgment in Tapan Kumar Biswas v. Union of India - 1996 (63) ECR 546 which held that a noticee has no right to cross-examine all witness under section 24 of the Act, is not good laws. The Supreme Court judgment in Kanungo Co. v. CC - 1983 (13) E.L.T. 1486 which it has relied upon does not contain such a proposition. On the contrary, he says the Calcutta High Court in its unreported judgment in ITC v. Union of India, FMAT No. 3894/94 has observed that except in certain exceptional cases, a noticee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a consistent stand taken by the Tribunal in various decisions that cross-examination must be permitted if asked for, of witnesses upon whose evidence reliance is made by the department. We need not repeat the decisions that have been cited in this regard. 10. In his reply to the show cause notice, the appellant has specifically asked for cross-examination of all the witnesses upon whom the department relied. It is not possible for us to conclude that this request was later given up. The record of personal hearing before the Additional Collector has not been produced by either side. No doubt, the Additional Collector has not specifically recorded among the submissions made by the advocate, the request for cross-examination. It is therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany, to say that the Supreme Court has laid down that cross-examination should never be permitted of witness whose evidence is relied upon. It is necessary to refer to the facts of that case. Kanungo Company sought to explain its lawful acquisition of wrist watches seized from it by producing various cash memos and vouchers. The Additional Collector in his order said that the person in whose name cash memos and vouchers had been issued was found in an enquiry to be fictitious. He ordered confiscation of the goods and penalty. The learned Single Judge of the High Court allowed the appeal filed by the Kanungo Company against this order. The division Bench allowed the appeal against the order of the learned Single Judge. It was the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not strictly bound by the rule of evidence. Nevertheless the authorities must base their orders on materials, which are known to the assessee, and after he was given an opportunity to rebut the same . 13. The advocate for the appellant has also relied upon the judgment of the Division Bench of the Calcutta High Court in ITC v. Union of India FMAT No. 3894/94. In that judgment the Court after considering a number of judgments held that the applicant before it was entitled to cross-examination of witnesses whose statements had been form basis of the notice to show cause. The departmental representative s contention that the issue related to assessment of cigarettes may be correct, but we do not find that it is the particular facts of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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