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TMI Blog2019 (1) TMI 1868X X X X Extracts X X X X X X X X Extracts X X X X ..... 119 of the Customs Act, 1962. 3. The statements of these persons were recorded under Section 108 of the Customs Act, 1962 during investigation which preceded the SCN and the impugned Order in Original No.TCP/Cus.PRV/JYC/055-17 passed by the 1st respondent. 4. These persons were appellant's own partners, former employees and the brother of his partner who had allegedly facilitated smuggling of gold illegally in contravention of the provisions of the Customs Act, 1962 in concert with the appellant. 5. It was alleged that the appellant master minded the entire smuggling of the gold with help of these persons. These persons have given statement that they had participated in the smuggling of gold in contravention of the Customs Act, 1962 masterminded by the appellant. 6. They were also arrested along with the appellant and remanded to judicial custody. During investigation, it was revealed that the appellant was regularly involved in smuggling of gold and this was not the first instance of clandestine import of gold into the country from Sri lanka in contravention of the Customs Act,1961. All these persons have later reportedly separately retracted the statement given under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 862 (Bom.) (xii) Manidhari Stainless Wire Pvt. Ltd., Vs. Union of India 2018(360) ELT 255 (A.P.) (xiii) Lalit Kumar Modi Vs. Special Director, Directorate of Enforcement (Westen Region) Mumbai 2018(360) ELT 583 (Bom.) (xiv) Mani Bhadraw Trading Co. Vs. C.C.(Seaports- Exporters), Chennai 2010(251) ELT 194 (Mad.) (xv) Surjeet Singh Chhabra Vs. Union of India 1997(89) ELT 646 (S.C.) (xvi) M/s.Kanungo& Company Vs. Collector of Customs and others (1973) 2 Supreme Court Cases 438 (xvii) Andaman Timber Industries Vs.Commissioner of Central Excise, Kolkata-II (2016) 15 Supreme Court Cases 785. 11. The learned counsel further submitted that as provisions of the Customs Act, 1962 and the Central Excise Act, 1944 are pari-materia and therefore, the impugned order passed by the 1st respondent was liable to be quashed particularly in the light of the decision of the Hon'ble Supreme Court in Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata-II (2016) 15 Supreme Court Cases 785 referred to supra, wherein, it was held held that denial of right to cross examine the sellers who gave statements was totally untenable. The case was therefore remitted back to the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it as a kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for crossexamination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the crossexamination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of crossexamining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed. 27. In Mysore Vs Shivabassappa Shivappa supra, it was further observed that "the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statements of co-accomplices or based on preponderance of probability or not is something which can be examined only before the Appellate Commissioner and not in a writ proceeding. 34. Scope of writ petition and the extent to which courts can interfere under Art. 226 is limited. The appellant should therefore explore options before the Appellate Commissioner and place all legal and factual submissions there. The remedies sought for by the appellant before this Court is available to him before the Appellate Commissioner. 35. We would not like to influence the Appellate Commissioner one way or the other on merits should the appellant choose to opt to question the impugned order of the 1st respondent. 36. The Appellate Commissioner can on proper examination of records can come to a just conclusion. As the jurisdiction to interfere is very limited, we would not like to pass orders on merits particularly in view of the statements which appears to have been given by the appellant before the 2nd respondent during investigation. 37. In view of the above conclusion, we are inclined to dismiss the writ appeal. Appellant is given liberty to file an appeal before the Appellate Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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