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2022 (8) TMI 184 - AT - CustomsLevy of penalty u/s 112(a) and u/s 114AA of the Customs Act, 1962 - alleged involvement in forged /fake VKGUY /DEPPB license and imports there under - cross-examination of witnesses not allowed, upon which the whole case is based on - HELD THAT:- The entire case of the Revenue against the Appellant is based upon the statements of Shri Kalpesh Daftary co-noticee without there being any further evidence. In the impugned order for confirmation of penalty against the Appellant Ld. Commissioner relied upon the statements of Shri Kalpesh Daftary. In fact in this case when Appellant asked for cross-examination of Shri Kalpesh Daftary and other persons, whose statement was relied upon to implicate the appellant, the request of the appellant was denied by the Ld. Commissioner, therefore, the said statements cannot be admitted as piece of evidence as per Section138B of the Customs Act, 1962 - In fact of the present case, when the statements of Shri Kalpesh Daftary were heavily relied upon to penalise the appellant, the said statements being third party evidence and when the appellant seriously disputed the same, it was bounden duty on the part of the Ld. Commissioner to cross examine the witnesses and only thereafter such statements could have been relied as a piece of evidence, which Ld. Commissioner has gravely failed to do his duty. In this circumstances the statements lost it’s evidentiary value. Therefore due to non compliance of Section 138B of the Customs Act, 1962 on the part of Ld. Commissiomer, the statements of Shri Kalpesh Daftary relied upon to fasten the penalties upon the appellant are not admissible as evidence. In the facts of the present case, it is on record that Ld. Commissioner has disallowed the request of cross-examination of persons and relied upon such statements as evidence. The impugned order-in-original does not record a finding that, any of the conditions specified under Sections 138B(1) of the Act of 1962 stands satisfied thereby such statements without cross-examination of such witness became absolutely irrelevant. In such circumstances, the adjudication proceedings conducted by the adjudicating authority and resultant the impugned order-in-original stands vitiated by breach of principles of natural justice. The impugned order imposing penalties on appellant is unsustainable and liable to be set aside - Appeal allowed.
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