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TMI Blog2013 (11) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable in the eyes of law. Therefore, the failure of the department to produce the panch witness invariably strengthens the case of the appellant and the benefit of doubt is in their favour - Decided against Revenue. - C/A/34-35/2012 - A-756-757/KOL/2012 - Dated:- 12-10-2012 - Dr. D.M. Misra, J. Shri S. Chakraborty, Asstt. Commissioner (AR), for the Appellant. Shri A. Chakraborty, Advocate, for the Respondent. ORDER These appeals are filed by the Revenue against the Order-in-Appeal Nos. 193-194/Pat/Cus/Appeal/2011, dated 8-12-2011. 2. Briefly stated facts of the case are that on 22-2-2007, the Customs Officers intercepted a person namely Shri Shrawan Sah at 19.15 hours near border check post with 15 silver bars weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue is in appeal. 3. Learned AR appearing for the Revenue has submitted that this is the second round of litigation. In the first round of litigation, the Tribunal after considering the facts and circumstances of the case had remanded it to the adjudicating authority for deciding the issue afresh, after allowing the respondents cross-examination of the panch-witnesses and an opportunity of personal hearing to them. He has submitted that in spite of best efforts by the Department, the investigating officers could not locate the panch-witnesses and accordingly, the panch-witnesses could not be produced before the adjudicating authority in the de novo adjudication proceedings for cross-examination. However, the adjudicating authority on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d both sides and perused the records. I find that in the initial round of litigation before this Tribunal, after hearing both sides and distinguishing the judgment of Hon ble Supreme Court in the case of Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646 (S.C.), held as follows :- 4. I find that the facts of the case before the Hon ble Supreme Court in the case of Surjeet Singh Chhabra (cited supra) are different as in that case, the gold jewellery was recovered at the Airport and the only issue raised was whether the same was recovered at the conveyor belt or at the green channel. In the circumstances, the Hon ble Supreme Court says that the cross examination was not necessary as the recovery is made at the Airport which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amply clear that the seizing authority has failed to substantiate the legality of the seizure inasmuch as that they failed to produce the Panch Witness as per direction of Hon ble CESTAT. Without the panch witness the veracity of the seizure and the place of seizure cannot be fully established. Since the department is not able to substantiate the legality of its action the order of confiscation and imposition of fine and penalty are not sustainable in the eyes of law. Therefore, the failure of the department to produce the panch witness invariably strengthens the case of the appellant and the benefit of doubt is in their favour. Hence the order of the lower adjudicating authority needs to be set aside in favour of the appellant. 5.3 I a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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