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TMI Blog2024 (10) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents had filed the aforesaid appeals against an Order-in-Original dated 23.11.2011 passed by the Commissioner of Customs, ICD, Tughlakabad, Delhi (hereafter the adjudicating authority). In terms of the said order, the adjudicating authority had directed the confiscation of the goods attempted to be exported under Shipping Bill No.1163482 dated 19.04.2010 for an amount of Rs. 4,47,750/- but allowed the redemption of such goods subject to the payment of redemption fine of Rs. 1,00,000/-. 3. In addition, it was also found that the exporter (Manish Singhal, sole proprietor of M/s Singhal Traders) had exported the goods of similar description (Mud additive chemicals for oil wells) in the past through 25 (twenty-five) shipping bills, and the adjudicating authority assumed that the said goods were also liable to be confiscated. Accordingly, the adjudicating authority directed the confiscation of the sale proceeds of Rs. 3,430/- which was available in the bank account of M/s Singhal Traders and ordered investigation into the remaining sale proceeds amounting to Rs. 1,13,43,550/-. 4. The adjudicating authority imposed the penalty of Rs. 25,00,000/- under Section 114 the Act as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeals. 11. The Revenue has projected the following substantial questions of law for consideration by this Court:- "i. Whether order of Tribunal is based on wrong interpretation of Section 138B of the Customs Act,1962? ii. Whether looking into facts of the case the Tribunal is justified in quashing the order without going into merits and only on the ground of denial of cross examination? iii. Whether in light of facts of the case the Tribunal is justified in setting aside the order without any remand and opportunity to the Department to allow cross examination? iv. Whether in light of facts of the case the Tribunal is justified in not accepting cogent and convincing reason mentioned by the Adjudicating Authority for denial of cross examination of CRCL officer? v. Whether in light of facts of the case the Tribunal was right in insisting on cross examination even in the case of confessional statements?" 12. It is clear from the plain reading of the impugned order that the CESTAT had allowed the appeals on the sole ground that the statements, which formed the foundation of the order-in-original dated 23.11.2011 could not be used as relevant for proving the allegations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court." 11. We may straightaway say that the provisions of section 9D of the Central Excise Act, 1944 are identical to the provisions of section 138B of the Customs Act, 1962 which would be applicable in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the witnesses without undue delay or expense. Whether such a finding was otherwise justified or not can be taken up in the appeal." 14. The Division Bench also observed that though it cannot be denied that the right of cross-examination in any quasi-judicial proceeding is a valuable right given to the accused/noticee, as these proceedings may have adverse consequences to the accused, at the same time, under certain circumstances, this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in section 9D of the Central Excise Act, 1944. The circumstances referred to in section 9D, as also in section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the court considers unreasonable. It is clear that unless such circumstances exist, the noticee would have a right to cross-examine the persons whose statements are being relied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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