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2019 (3) TMI 425 - HC - CustomsPenalty u/s 112(a) and (b) of the Customs Act - smuggling of Gold - territorial jurisdiction - scope of Customs Act beyond the territory of India - mandatory procedure prescribed under section 138B of the Customs Act, 1962 - uncorroborated statements of co-accused - ex-parte order - principles of natural justice - Held that:- On getting the show cause notice, the appellant sent a letter to the Commissioner of Central Excise & Customs on 01.10.2014. In that reply, he has mentioned that the documents referred to in the notice, and stated to be relied upon by the prosecution, were not handed over to him. The allegations against him of having arranged for smuggling of gold through Karipur Airport with the aid of Navas and Shafeeq in Dubai, and of Abdul Basheer, his friend, at Calicut Airport, is also denied by the appellant. He has denied having any connection with Navas and Shafeeq or arranging gold for smuggling through Altaf. He denies having any acquaintance with Navas or Shafeeq. It is also pointed out that neither Altaf nor Abdul Basheer, who were apprehended in this connection, could give any whereabouts of Shafeeq or Navas, and therefore, without identifying those persons who have admittedly contacted the passenger Altaf or Manoj, it would not have been possible to connect the appellant to the alleged act of smuggling. The appellant had produced documentary proof of the fact that the telephone number spoken to by the witnesses as his, belonged to someone else. But the authority had concluded that the mobile number belongs to him relying solely upon the statements of Basheer and Shamsudhin. Going through the entire Annexure H order of the Adjudicating Authority, we do not find anything concrete to rope the appellant in the alleged smuggling of gold, but for the recorded statements of persons, who were directly involved. The Adjudicating Authority here has relied on the statements recorded under Section 108 without affording an opportunity to the appellant to cross-examine them. In the reply to the show cause notice filed by the appellant, he has specifically requested for the witnesses to be cross-examined, and therefore, the Adjudicating Authority was bound to follow the mandatory procedure prescribed in Section 138B of the Act. Without having done so, the order is not sustainable - appeal allowed.
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