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TMI Blog2024 (12) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... Q.) , C. EX. COLLECTORATE, COCHIN [ 1997 (2) TMI 97 - SUPREME COURT] Hon ble Supreme Court after considering the decision in case of Naresh Sukhawani has observed that 'On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis for conviction. The Magistrate had dwelt upon the controversy, no doubt on appreciation of the evidence but not in proper or right perspective. Therefore, it is not necessary for the learned Judge of the High Court to wade through every reasoning and give his reasons for his disagreement with the conclusion reached by the Magistrate.' The matter remanded back to original authority for reconsideration of matter in case of respondent after allowing the cross examination of Shri Anurag Garg, Director of M/s Auspicious Ornaments. There are no error in the direction given by the first appellate authority for which the revenue is aggrieved and have filed this appeal. Appeal filed by the revenue is dismissed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) MR. SANJIV SRIVASTAVA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was given by Shri Jagdish Puri for purchase of silver bullions which was denied by Shri Puri. 2.4 A show cause notice dated 22.12.2022 was issued under the Customs Act, 1962 (hereinafter referred to as the Act ) proposing confiscation of the aforesaid seized gold, silver, Indian Currency and vehicle along with imposition of penalties. 2.5 The adjudicating authority vide the impugned order confiscated the recovered contraband and vehicle and imposed penalty upon the appellant along with penalty on others under the Act. 2.6 Aggrieved the respondent preferred appeal before Commissioner (Appeal) which has been allowed as per the impugned order referred in para 1 above. 2.7 Aggrived revenue has filed this appeal stating the following grounds: (i) The appellant has claimed that the adjudicating authority confiscated the gold, silver, Indian Currency and vehicle by relying upon the oral statement of Shri Anurag Garg, Director of M/s Auspicious Ornaments Pvt. Ltd wherein he informed that the silver sold by him to the appellant was different from the silver seized by the officers of DRI from the appellant's premises. However, the facts indicate that the written statement of Shri Anurag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Pr. Commissioner (Appeals) has observed that the adjudicating authority has passed Order-In-Original in violation of the principles of natural justice as he denied the appellant opportunity of cross examination of Mr. Anurag Garg which is against the provision of Section 138 B of the Customs Act.1962 and the judgement of Hon'ble Allahabad High Court, in Special Appeal No. [741] of 2010- Commissioner of Central Excise, Meerut-I, Meerut Another Vs. M/s Parmarth Iron Pvt. Ltd., Bijnor . The above observation is not correct as the adjudication order has not been passed only the basis of statement of Shri Anurag Garg. Other collaborative evidences such as seizure of silver having foreign origin mark by the DRI officers in the presence of independent witnesses, fake invoices produced by the appellant, statements of family members of the appellant, various other records etc. reveal the involvement of the appellant in the act of smuggling of foreign origin of gold / silver. Again, the case law quoted is not squarely applicable in the instant case as in the present case there are corroborative evidences other than the statement of Mr Anurag Garg which clearly establishes case ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.. . 3.1 We have heard Shri Santosh Kumar, Authorized Representative for the revenue and Shri Vineet Kumar Singh Advocate for the Respondent. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of argument. 4.2 Impugned order records as follows: 5. have carefully gone through the appeal memorandum, submissions made by the appellant as well as the records of the case placed before me. The limited issue to be decided in this appeal is whether cross objection sought by the appellant during adjudication proceedings should have been granted by the adjudicating authority or not. In this regard the appellant has cited a judgment of the jurisdictional 6 Hon'ble Allahabad High Court, the rclated portion of the said judgment is reproduced below- Special Appeal No.[74 1] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 adritted in evidence in the interests 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. From above it is abundantly clear that the statement recorded have conclusive evidentiary value only when the same has been tested through cross examination during the course of adjudication proceedings, which, obviously has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner is involved in the passing off foreign currency out of India. 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine. Thus the said decision s clearly distinguishable and cannot be applied to present set of facts. 4.5 In case of K I Pavunny [1997 (90) E.L.T. 241 (S.C.)] Hon ble Supreme Court after considering the decision in case of Naresh Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator s report) and the oral evidence of the witnesses in proof of recovery and in connection therewith. This Court, therefore, in evaluating the evidence for proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve. 31 . It is seen that the contraband of 200 gold biscuits of foreign marking concealed in a wooden box and kept in the pit in the compound of the appellant was recovered at 9.00 a.m. on December 6, 1980 in the presence of Panch (mediator) Witnesses including PW-3. This is proved from the evidence of PWs 2, 3 and 5. There was nothing for PW-3 to speak falsehood against the appellant who is a friend of him. PWs 2 and 5 also withstood the grueling cross-examination. There is nothing to disbelieve their evidence. The appellant herein made s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our considered view there has been violation of principles of natural justice. The facts in Kanungo and Co. (Supra) show that there the petitioner was given enough opportunity including personal hearing. Moreover, as rightly contended by Mr. A. Hidayatullah, learned Senior Counsel in that case there is nothing to show that the petitioner therein had demanded to cross-examine the persons, who have made statement against it at the very initial stage like the present case. Therefore, it appears that in the facts and circumstances of the case, there the Supreme Court rejected the plea of the petitioner praying for cross-examination. But here as would appear while filing the interim show cause under Annexure-25, the petitioner has wanted to cross-examine Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo before filing their final reply. Since the same was not acceded to, in our considered view, the entire decision making process has been vitiated. This is because in case during cross-examination the petitioner is able to demolish the statements of Mr. Tapan Chandra Dey and Soumendra Kumar Sahoo then the entire foundation of the case of the department would collapse. In such background, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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