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2014 (5) TMI 1009 - AT - CustomsRevocation of CHA License – Transfer of Licence – Recoded statement - Section 108 of Customs Act - Regulation 12 of CHALR, 2004 - Held that:- Appellant is one of 10 persons to whom the licence alleged to have been transferred - Thus, department could not establish that the provisions of Regulation 12 of CHALR, 2004 were contravened - The appellant obtained valid and a proper authorization letters from their clients and that Regulation 13(a) of the CHALR, 2004 have been contravened is not established. Entire case of the department is based on the statements recorded u/s 108 - Admittedly the proceedings under CHALR, 2004 are in the nature of domestic Inquiry proceedings and evidence is required to be brought on record during the course of the Inquiry proceedings - The evidence given by witnesses clearly brings out the basic fact that the licence has not been transferred and that it was the employees of the appellant who have been attending to Customs clearance work in Custom house by filing the necessary documents, attending to assessment, examination and clearance of the goods - Evidence given by Shri Sagar Rakshe and Amit Pattani, during the Inquiry has not been taken into consideration only because the said evidences given by the witnesses of the department is against the charges framed by the department. Relying upon M.V. Bijlani v. Union of India and Ors [2006 (4) TMI 455 - SUPREME COURT] -Statement recorded vide Section 108 has been given some special status as to its acceptability in relation to proceedings under the Act but there no provision like the one found in Regulation 23(3), exist for the purpose of adjudication under the said Act - Notice u/s 124 has to be served which also includes the statements recorded u/s 108 and the other side has an option to ask for production of such persons for cross-examination - Both recording of evidence and offering the persons for cross-examination has been made mandatory under Regulation 23(4) - Non-examination of these two passengers and non-offering them for cross-examination to the delinquent, therefore, makes their statements recorded in other proceedings not admissible - There is also no allegation that these two passengers have been intentionally kept away by the appellant and only ground for non-examination mentioned is that they did not respond to the summons - It is true that there is no power in such authorities to enforce their attendance, but if their presence cannot be secured, their evidence has to be discarded and cannot be used in any manner - Any use of their statement would directly violate Regulation 23(4) - Impugned order is set aside – Decided in favour of appellant.
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