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TMI Blog2024 (7) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Sanjay Jain and Shri GuganKumar. However it is found that said persons were not examined in the adjudication proceedings even after the request of Appellant and as such their statements are not admissible as evidence under the provisions of Section138B of Customs Act, which provides that - if an authority in any proceedings under the Act wants to rely upon the statement of any person (made during enquiry), such person is required to be examined as witness and if the adjudicating authority finds the evidence of the witness 'admissible', then such witness should be offered for cross-examination and only thereafter the evidence is admissible. In absence of compliance with the provision of Section138B of the Act, the statements are not admissible as evidence. In the present matter the Supplier of the goods at Malaysia nowhere have claimed that the goods have been supplied were Chinese origin. It appears that the allegations were very serious but no cogent material was collected to substantiate these allegations. It is settled law that in case of difference between documentary evidence and oral evidence the former should be given precedence and later should be ignored. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand of Customs duty along with interest and penalty.In adjudication, Ld. Commissioner vide impugned order rejected the benefit of Notification No. 46/2011 Cus and confirmed the duty demand along with interest and penalty. Aggrieved, the present appeal has been filed by the Appellant before this Tribunal. 2. Shri Devashish K. Trivedi, Learned Counsel appearing on behalf of the appellant submits that in today s age of globalization, appellant used to contact one Sanjay Jain who was based in China. Shri Sanjay Jain in turn used to contact one M/s D.M Aluminium and Steel Manufacturing, Malaysia. Said Company had different Directors viz. Md. Umar Bin NadeemShikoh and Md. Usman Bin NadeemShikoh and was totally different entity then the Company of Mr. Sanjay Jain i.e M/s. Excelvantage Global Ltd., Hongkong. The goods were received from Malaysia under packing list, commercial invoice, etc, of DM Aluminium and Steel Manufacturing. Documents such as MILL Inspection Certificate, Bill of Lading, Fumigation Certificate, County of Origin Certificate, clearly evidencing that the goods were of Malaysian Origin and were supplied by DM Aluminium and Steel Manufacturing, Malaysia were received along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is submitted by the appellant with this appeal memo. 2.3 He argued that in the aforesaid circumstances, the allegations levelled against the Appellant cannot be believed. The statement of Shri Sanjay Jain requires to be discredited as no opportunity of cross examination of Sanjay Jain was granted by the Adjudicating authority. He placed reliance on the following judgments:- (i) Andaman Timber Industries Vs. Commissioner of C.Ex. Kolkata 2015(324)ELT 641 (SC) (ii) BasudevGard Vs. Commissioner of Customs 2013(294) ELT 353 (Del.) (iii) Commissioner of Central Excise, Meerut-I Vs. Parmarth Iron Pvt. Ltd. -2010(260)ELT 514 (All.) (iv) Jindal Drugs Pvt. Ltd. Vs. Union of India 2016(340)ELT 67 (P H) (v) G. Tech Industries Vs. Union of India -2016(339)ELT 209 (P H) (vi) Commissioner of C.Ex., Ahmedabad II Vs. Gujarat Cypromet Ltd. 2017 (345)ELT 520 (Guj.) (vii) Balaji Enterprises Vs. Union of India 2018(362)ELT 94 (Guj.) (viii) Mulchand M. Zaveri Vs. Union of India (ix) Manek Chemicals Pvt. Ltd. Vs. Union of India 2016(334)ELT 302 (Guj.) 3. On other hand, Shri Tara Prakash, Learned Deputy Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and activity of supplier who supplied the goods to the Appellant which has not been discharged by the department in the present matter. 4.2 In the present matter revenue in support of allegations rely upon the statements of Shri Sanjay Jain and Shri GuganKumar. However we find that said persons were not examined in the adjudication proceedings even after the request of Appellant and as such their statements are not admissible as evidence under the provisions of Section138B of Customs Act, which provides that - if an authority in any proceedings under the Act wants to rely upon the statement of any person (made during enquiry), such person is required to be examined as witness and if the adjudicating authority finds the evidence of the witness 'admissible', then such witness should be offered for cross-examination and only thereafter the evidence is admissible. In absence of compliance with the provision of Section138B of the Act, the statements are not admissible as evidence. Section138B of the Customs Act, 1962 reads as under :- 138B. Relevancy of statements under certain circumstances.(1) A statement made and signed by a person before any gazetted officer of customs dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite party should be taken in his presence by giving an opportunity of cross-examining the witnesses examined by that party. In the present case, neither any speaking order has been passed nor the respondent justified in not permitting the petitioner to cross-examine the above said eight witnesses. Thus, such attitude of the respondent shows that the petitioner was not given fair opportunity to defend their case, therefore, not providing an opportunity to cross-examine the above said eight witnesses, in my view, would violate the principles of natural justice. Accordingly, the impugned order is set aside and the respondent is directed to permit the petitioner to cross-examine the above said eight witnesses and pass appropriate orders on merits and in accordance with law. Such exercise shall be completed by the respondent within a period of 45 days from the date of receipt of a copy of this order. 9. In fine, for the reasons stated above, the writ petitions stand allowed. No costs. Consequently, connected miscellaneous petitions are closed. ' 4.4 We also find that in the present matter the Supplier of the goods at Malaysia nowhere have claimed that the goods have been supplied we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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