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2022 (9) TMI 1226 - AT - CustomsSmuggling - 3 Kgs of smuggled Gold Bars - foreign origin goods or not - reliability of statements - whether the compliance of 138 B of the Customs Act, 1962 was mandatory and that as to whether the non-compliance thereof amounts to no evidence on record to disprove the allegations of show cause notice? - HELD THAT:- Perusal of Section 138B of Customs Act makes it clear that it is mandatory on the adjudicating authority to examine the witnesses before itself prior relying upon the statement irrespective it has not been so asked by the party whose statement has been recorded or who is relying upon the said statement - These are the observations of this Tribunal in the case of M/S. ANIL GADODIA VERSUS C. C-NEW DELHI (PREV) [2020 (4) TMI 82 - CESTAT NEW DELHI]. No doubt department has also relied upon a decision of Kerala High Court where denial of cross examination of witnesses was upheld. But perusal reveals that in that case the cross examination of departmental officers was denied on the ground that those are the officers who assessed, audited and examined the import consignment and on the ground that show cause notice has not relied upon any of those statements but has been issued on the basis of the documents. Hence the said decision do not appear to squarely cover the present case. There are no reason to differ from the decision in the case of M/s. Anil Gadodia. As the result thereof it is held that statement of Shri Ankit Bansal cannot be read into evidence. For the same reason the statements even of Shri Pankaj Tayal and Shri Vivek Aggarwal as relied upon by the learned Counsel for the appellant are held not to be admissible into evidence. From the Panchnama, it is clearly apparent that three gold bars were seized being packed in the paper having marking “KOLHAPUR GOLD LAB” by the Customs Preventive Officers from Shri Ankit Bansal having inscription “RAND REFINERY LTD, SOUTH AFRICA”. This perusal is sufficient to hold that no error has been committed by the department by reasonably believing the seized good to be the gold of foreign origin. Such an inscription has otherwise not been disputed by the appellant even at the stage of making final submissions - Mere production of delivery challan on the record at subsequent stage is highly insufficient to prove that the said delivery challan was in possession of Shri Ankit Bansal at the time he was intercepted with three gold bars. It was purely for the appellant to prove that the gold was not smuggled and that Shri Ankit Bansal was legitimately possessing the said gold which otherwise was not of foreign origin. The invoices, purchase register, stock register, delivery challan have failed to prove that the gold in question was lawfully purchased by the appellant that too of such a purity which was more than 995. The possibility of all these documents to be subsequently created cannot be ruled out. This inference gets support from the fact that the delivery challan as is mentioned to have been given to Shri Ankit Bansal was not found during his personal search, nothing cogent has been brought on record to prove that the said challan was with Shri Ankit Bansal at the time of search and the seizrue of the gold. In the light of above discussion, even if the statements of the witnesses are not looked into due to the non-compliance of Section 138 B of Customs Act, 1962 but the documents on record are held insufficient to prove the appellant’s case. The onus of appellant to prove that the goods were not smuggled goods stands un-discharged. The allegations in the show cause notice are held to have rightly been accepted by the adjudicating authorities below. The confiscation of 3 gold bars is held to have rightly been confirmed - there are no infirmity with the order of imposition of penalty upon Shri Mukul Aggarwal. As far as Shri Ankit Bansal is concerned, he being the possessor of the gold was equally responsible, in terms of the provisions of Customs Act, to have all genuine documents proving the valid possession of the gold having foreign mark with him. There are no infirmity in the order imposing penalty even on Shri Ankit Bansal. Appeal dismissed.
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