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TMI Blog2023 (10) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... te and few of the documents which could not be produced; he had also fixed up various dates for cross examination of all 17 witnesses, however could record the proceedings of cross examination conducted before him only in 4 cases, as others did not turn up. Thereafter, the learned Commissioner (Adjudication) has gone into the facts of the case, evidences available on record, and all the four cross examination record of the witnesses. He had also made clear that in view of the Hon ble Supreme Court s judgement in the case of Gopal Saran Vs. Satyanarayana [ 1989 (2) TMI 415 - RAJASTHAN HIGH COURT ], that evidences of those persons who were not made available for cross examination not being treated as evidences, as if such evidences simply does not exist, the statements and panchnamas of remaining persons whose cross examination could not be conducted before him, he had completely ignored and discarded those as evidence. From the net result of the cross examination of 4 witnesses and the non- availability of other witnesses, documents that have been produced during the proceedings, the learned Commissioner (Adjudication) had arrived at the conclusion that all the allegations bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these accounts subsequently. On conclusion of the investigation, a show cause notice dated 21/28.12.1998 proposing demand of duty on computer parts and peripherals alleged to have been smuggled under Section 28 of the Customs Act, 1962 besides proposing imposition of penalty on Shri Deepak Dialani under Section 112(a) and (b) ibid, as the said goods were liable for confiscation and penalty on other persons involved in the case. The SCN was adjudicated by the Commissioner (Appeals) by confirmation of the adjudged demands and imposed penalties on Shri Deepak Dialani and 8 other co-noticees. Feeling aggrieved by this order, the various parties have appealed before the Tribunal, who had ordered vide Order No. A/633 to 637/WZB/2004/C-I dated 25.3.2004 as follows: 9. In the light of the above discussion on non-supply of documents to Deepak Dialani and denial of the right of cross-examination we set aside the impugned order and remand the case to the jurisdictional Commissioner of Customs for fresh decision after supply of documents relied upon against the Deepak Dialani in the impugned order and supply of 67 documents requested by him and after permitting cross- examination of 17 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand directions given by this Tribunal in its order dated 25.3.2004 in adjudication of the cases and whether these are sustainable in law. 6. We find that learned Commissioner of Customs (Adjudication) while taking up the case in denovo adjudication had categorically mentioned about how he had gone ahead with ensuring provision of various documents sought by the parties from the department and cross examination of witnesses, keeping in view of the directions given by the Tribunal. He had recorded in the impugned order about the various documents provided by the DRI investigation to Shri Deepak Dialani through his advocate and few of the documents which could not be produced; he had also fixed up various dates for cross examination of all 17 witnesses, however could record the proceedings of cross examination conducted before him only in 4 cases, as others did not turn up. Thereafter, the learned Commissioner (Adjudication) has gone into the facts of the case, evidences available on record, and all the four cross examination record of the witnesses. He had also made clear that in view of the Hon ble Supreme Court s judgement in the case of Gopal Saran Vs. Satyanarayana - (1989) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other course of action would result in rendering the order of the Appellate Tribunal totally meaningless and that would certainly be against judicial propriety and discipline. 30.1. Cross examination of 4 persons: i) Joe Dsouza: Cross examination has brought out that Joe Dsouza is not familiar with computer parts; that after December 1992 he has never travelled abroad; that between 1987 and 1992 he had not met the noticee s brother Prakash in HKG as Prakash was student in Mumbai. It was further brought on record that he had not opened posing as Jeff Norman Dsouza any account in the Vijaya Bank. No documents of these accounts were taken from his custody nor were specimen signature taken by the DRI. He has specifically denied bringing computer parts into India for the Noticee. ii) Prakash Toraskar: In cross examination he admitted that noticee never asked him to give any introduction and that he had not brokered any deal for the premises at the Adarsh Nagar. iii) Prakash Nihalani: On being shown the copies of the invoices, Airway Bill and Remittances he admitted that he had imported computer parts from the Dianacom International HKG which belongs to the Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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