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TMI Blog2020 (4) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... whom the said statement is likely to be used, it is necessary for the Adjudicating Authority to grant the cross examination of such witnesses in terms of section 138(B) of the Customs Act, 1962. From the reading of the above section 138(B) it clearly comes out that even without asking for cross examination it is incumbent on the Adjudicating Authority to examine the witness before relying upon his statement for the Adjudication process. Therefore, in the present case in one hand most of the statements were retracted and over and above the appellant requested for cross examination. The Adjudicating Authority is duty bound under the statute to grant the cross examination. In absence of cross examination of the witnesses the statements given by them has no evidentiary value and same cannot be relied upon against the appellant. When the appellant sought for cross examination of the witness and if the request is not acceded to the adjudicating authority should not have relied upon the statements of such witness. The appellants case is on better footing as their request for cross examination is reinforced with the retraction of the most of the statements, therefore, since the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional cash of ₹ 10 Lakhs from a person named Shiv Kumar who had just arrived at the premises. The detention was subsequently converted to seizure on 14.03.2014. II) 31.633 MT of red sanders, white wood logs, white wood powder, red wood powder, brown wood powder, etc were seized from godown of the appellant in Wazirpur Industrial Area, Delhi. III) Some documents were seized from the resident of one Shri May Ranjan, New Delhi. IV) Indian Currency of ₹ 4.20 Lakhs and some documents were seized from the residence in New Delhi of one Mr. Yodying @ Chan. V) 8.02 MT of red sander logs and some saw-dust were seized from the godown of Shri Daljeet Singh, New Delhi. VI) Some documents were also recovered from the residential premises of Shri Daljeet Singh at New Delhi, on 28.09.2013, which were formally seized on 14.03.2014. VII) A laptop was resumed from the residential premises of one Shri Saurabh Chopra on 29.09.2013 which was later formally seized on 14.03.2014. 2. During the course of investigations statements of various persons were recorded by DRI, the detail of same are as under:- i) Shri Rameshwar Sharma, Proprietor, Euro Exports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions the Learned Joint Commissioner of Customs adjudicated the show cause notice whereby imposed a penalty of ₹ 10 lakhs on the appellant and ordered confiscation of 23.03 Kgs of red sanders seized from the residence-cum-business premises of the appellant on 28.09.2013 and 750 kgs of red sanders seized from the godown of the appellant at Wazirpur Industrial Area, Delhi. The adjudicating authority did not confiscate 75.808 Kgs of goods seized from the residence-cum-business premises of the appellant on 28.09.2013 as they were found to be sandal wood and not red sanders. Quantity of 20.223 MTs of goods seized from godown was also not confiscated, on the ground that it was found to be sandalwood and not red sanders, 10.660 MTs out of total 11.411 MT seized of red sanders was also not confiscated as it was found to be duly reflected in the recorded stock of appellant in the godown Wazirpur Industrial Area. Being aggrieved by the Order-In-Original the appellant filed an appeal before the Learned Commissioner (Appeals) on 28.03.2017 but the same was dismissed. Hence, the present appeal. 4. Subsequently, on 21.04.2017, the department also filed appeal against the same impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Technical institute. This report was prepared prior to issue of show cause notice, hence, the same is not report as an RUD. The same was also not supplied to the appellant, therefore, firstly the said report could not have been relied upon, and secondly any decision on the basis of said report is clear contravention of the principles of natural justice. G) In a similar situation DRI had seized some red sanders from the appellant s godown on 24.11.2011. In the said case the matter was decided by the Commissioner (Appeals), IGI Airport, New Delhi, vide his order-in-Appeal No.CC(A)Cus/328/2014 dated 29.05.2014. in favour of the appellant holding that goods seized in India, away from any port of export, cannot lead to the conclusion that goods were attempted or intended to be exported. The said Order-in-Appeal has been accepted by the department. Following the same ratio, the present appeal needs to be allowed. H) The other show cause notice dated 24.03.2014 arising out of the detention of the seizure of 14.25 MTs as red sanders in four containers at CFS Mundra on 28.09.2013, was eventually decided in favour of the appellant vide CESTAT, Ahmedabad Final Order No. A/10098-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various premises of the appellant or for imposing any penalty on the appellant. M) Their further submission is that the export of red sanders is no longer prohibited w.e.f 18.02.2019 as per the Foreign Trade Policy (DGFT s Public No. 74/2015-20 dated 18.02.2019). N) It is also submitted the second Order-In-Appeal dated 19.11.2019 is ab-initio void since it has been issued in the context of Order-inOriginal dated 31.01.2017 which does exist and has already merged with the 1st Order-in-Appeal dated 14.06.2019 (impugned order), which is presently under challenge in this Appeal. Hence, once the present Appeal is decided the same will be brought to the notice of the adjudicating authority to drop the denovo proceedings. 5.1 In supports of his above submission, he placed reliance on the following judgment: 2000 (122) E.L.T. 641 (S.C.) Swadeshi Polytex Ltd. Versus Collector of Central Excise, Meerut 2002 (143) E.L.T. 21 (S.C.) Lakshman Exports Limited Vs. Collector of Central Excise 2010 (260) E.L.T. 514 (All.) Commissioner of Central Excise, Meerut-I Vs. Parmarth Iron Pvt. Ltd. 2014 (300) E.L.T. 25 (Guj.) Mahek Glazes Pvt. Ltd. Vs. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is strong evidence against the appellant in support of the offence of the appellant i.e. attempt to export of prohibited goods in the form of various statements of various persons. 7. As regard, the appellant s claim that the statements were retracted, he submits that there is a catena of judgments where in the court held that retraction statements has to be made before the same authority before whom earlier statements under Section 108 of the Customs Act were made. He placed reliance on the judgment of Sidhharth Shankar Roy-2013 (291) ELT 244 (Tri.-Mumbai). He further submits that it was proved beyond doubt that the illegal sale was made by Shri. Anil Gagodia for exports to the exporter, Shri. Chan on behalf of Shri. Lin from Hongkong. The sale of the prohibited goods is covered for the purpose of export of prohibited goods. As even in the statute of Customs Act, 1962, as per Section 14 the terms sold for export is liable for confiscation. As regard the cross examination sought by the appellant, he submits that the courts have held that where allegations found on noticee not only upon the statements but on other materials as well, it is for the adjudicating authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ietor of M/s. Jiwan International, dated 28.09.2013, 29.09.2013 was retracted on 30.9.2013. 3) The statement dated 28.09.2013 of Shri Mayur Ranjan, a Chines interpreter and a tour guide working freelance was retracted on 11.10.2013. 4) The statement dated 28.09.2013 29.09.2013 of Shri. Daljeet Singh working with a Cargo Moving Company were retracted on 06.11.2013. 5) The statement dated 28.09.2013 and 29.09.2013 of Mr. Yodying@ Chan, a permanent Bangkok resident, were retracted on 14.10.2013. 6) The Statement dated 29.09.2013 of Shri. Kamal Negi a freight forwarder was retracted on the same day that is on 29.09.2013. 7) The statement dated 29.09.2013 of Shri Saurabh Chopra owner of freight forwarding company, M/s. Krishna Logistics, was retracted on 10.10.2013. 8.1 In view of the above facts, most of the statements recorded under section 108 of Customs Act, 1962 were retracted. The appellant despite the fact that the statements were retracted also requested for cross-examination of the persons whose statements were relied upon under section 138(B), however, the Learned Adjudicating Authority has not acceded to the request of the appellant and rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Andaman Timber Industries (supra), the facts of the case was that the Revenue had issued a Show Cause Notice of under valuation by the appellant only on the basis of statements of two witnesses. Request of appellant seeking cross examination not dealt with in order. The Hon ble Court held that by not granting the cross examination of witnesses, Principles of natural justice violated making Order nullity. In the case of Flevel International (Supra) the Hon ble Delhi High Court dealing with the case where either no serious attempts made for cross examination of witness or denial of right to cross examination, the Hon ble Court held that denial of right to cross examination of the witness is a serious infraction on the part of the department. Simply stating that cross examination of larger number of persons would have taken to case is non ending process cannot be a justified reason to deny that opportunity to appellant. It was also held that authority wrongly proceeded on the basis that there was no right of cross examination overlooking the circumstances mention in Section 9D of Central Excise Act, 1962. 8.3 In view of the above judgments it is settled that when the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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