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TMI Blog2013 (5) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... to. The result being that the appellants have been deprived of their right to cross-examine the makers of the statements. Therefore, there has been a violation of the principles of natural justice. Furthermore, it is contended that the statements, unless the exceptions carved out in Section 138 (B) of the Customs, 1962 are clearly made out, cannot be regarded as being relevant and therefore cannot form the basis of proving the truth of the facts contained in the statements. 2. In all these appeals except CUSAA No. 7/2010, an additional issue has also raised and that is with regard to the non-supply of the enquiry report conducted after the conclusion of hearing by the Srilankan authorities. Before we address these issues, it would be necessary to set out some facts. 3. The principle allegation against the appellants is that they imported Ball Bearings of Chinese origin but showed by them as having been imported from Srilanka in order to evade anti-dumping duty. Show-cause notices were issued to the appellants on 30th April, 2004. Those showcause notices contained references to several statements of various individuals. In the case of the appellant, Sh.Anil Goel, there is a list o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve narration and evidence relied upon in the Show Cause Notice it would be seen that the entire case is built on the basis of statements of certain witnesses and the report sent by DRI, Chennai on the basis of enquiries conducted by Central Intelligence Unit of Sri Lankan Customs. Therefore, Your Honour is requested to summon all the above referred witnesses including the Customs Officers of Sri Lanka who have verified the premises in Sri Lanka and have done enquiries without recording statements of the landlord. If any report including final report in writing has been sent by Sri Lankan Customs, copy of the same may be made available as the same is relied upon in DRI, Chennai's letter dated 14.11.2003. However, in the interest of justice our client would like to have entire communication received from Sri Lankan Customs." 5. It has further been pointed out that the request for summoning the witnesses has been noted in the Order-in-Original dated 30.11.2005 itself. This is apparent from paragraph 50 of the Order-in-Original which clearly reveals that there was a request to summon all the persons who allegedly made these statements including the Custom Officers of Srilanka for cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credibility of evidence gathered by Investigation remained undoubted. Evidence act not being applicable to quasi judicial proceeding, preponderance of probability came to rescue of Revenue and Revenue was not required to prove its case by mathematical precision. Exposing entire modus operandi through allegations made in the show cause notice on the basis of evidence gathered by Revenue against the appellants was sufficient opportunity granted for rebuttal. Revenue discharged its onus of proof and burden of proof remained un-discharged by appellants. They failed to lead their evidence to rule out their role in the offence committed and prove their case with clean hands. Nothing was repelled by them to show that "KG: brand ball bearings were not of Chinese origin. They failed miserably to prove their bonafide. The import documents misdeclared the imported goods to be of Sri Lankan origin. The duty free exemption scheme available to goods manufactured in Sri Lanka was abused by appellants and customs duty was evaded on the Ball Bearings imported. Abuse of Notification benefit granting exemption to goods manufactured in Sri Lanka was proved by Investigation. 65. xxxxx xxxxx xxxxx 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2004 was considered is clear from the following extract of paragraph 70 (iv) of the Order-in-Original. (70)(iv) Similarly, as regards imports of bearings by M/s Maya Trading Co. and Devsons, it has been submitted by Shri Anil Goel that he is not concerned with these imports. However, he seems to make all efforts to establish the bonafide of the imports Made by M/s Maya Trading Co. and Devsons. It has been submitted by him in written brief submitted at the time of personal hearing on 14.10.2004 that the matter of authenticity of Country of Origin Certificates filed by M/s Maya Trading Co. and Devsons for clearance of goods at ICD Patpargani, was taken up by his advocate with the Board of Investment, Sri Lanka vide letter dated 10.05.2004 and it has been confirmed by the Department of Commerce , Sri Lanka vide letter dated 28.07.2004 that the certificate of origins referred to in Advocate's letter were issued by the Department of Commerce, Sri Lanka. On this basis, it has been claimed by him that the manufacturing activity of bearings was undertaken in Sri Lanka and the Country of Origin Certificate were issued by the Department of Commerce. As per the records placed before me, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said letter of Sri Lankan Customs. It was also informed by Sri Lankan Customs that certificate no. CO/ISFTA103/2138 is under investigation by them. The said correspondence is before me. These independent investigations made by the DRI through Sri Lankan Customs , thus, fully demolish the conclusion sought to be drawn by the noticee that the bearings were manufactured in Sri Lanka and the certificate of origin were genuine. Thus, the noticee is trying to mislead the Deptt. by misrepresentation of facts. In these circumstances, I hold that the three forged certificates of origins as mentioned hereinabove are forged certificates." 9. We have considered both the aspects of the matter and have heard counsel of both sides. The learned counsel for the appellants have placed reliance on the decision of the Supreme Court in the case of Swadeshi Polytex Ltd. Vs. Collector reported in 2000 (122) E.L.T. 641 (S.C.) as well as on Laxman Exports Limited Vs. Collector of Central Excise reported in 2002 (143) E.L.T. 21 (SC) for the proposition that whenever any statement is relied upon by the Revenue, an opportunity of cross-examining the maker of the statement should be given to the Noticee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a person before any gazette officer of customs during the course of any inquiry or proceeding under this Act shall be relevant for the purpose of proving, an any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable or (b) When the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall so far as may be apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court." It is apparent that both the provisions are identical. 13. This court while upholding the validity of Section 9D of the Central Excise Act, 1944 interpreted its provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is irresistible, namely, the provision is not uncanalised or uncontrolled and does not confer arbitrary powers upon the quasi judicial authority. The very fact that the statement of such a person can be treated as relevant only when the specified ground is established, it is obvious that there has to be objective formation of opinion based on sufficient material on record to come to the conclusion that such a ground exists. Before forming such an opinion, the quasi judicial authority would confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exercise of powers. The aggrieved party is not remediless. This order/opinion formed by the quasi judicial authority is subject to judicial review by the appellate authority. The aggrieved party can always challenge that in a particular case invocation of such a provision was not warranted." 15. The observations and conclusions arrived at by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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