1999 (12) TMI 485 - AT - Customs

Summary

Issues:
1. Retraction of statement by a co-accused.
2. Cross-examination rights of the appellant.
3. Legality of penalty based solely on co-noticee's confession.

Issue 1: Retraction of statement by a co-accused:
The case involved the smuggling of gold where one accused, Gandhi, implicated another, Jain. Gandhi later retracted his statement, claiming it was obtained through coercion. The appellant argued that without other evidence, Jain should not be penalized. However, the tribunal found that the retraction document was not authenticated and could not be accepted as evidence. Although Gandhi retracted his statement later, the appellant contended that relying solely on a co-accused's confession is insufficient for penalty imposition.

Issue 2: Cross-examination rights of the appellant:
The appellant requested cross-examination of witnesses, including Gandhi, but the departmental representative argued that this request was not pressed during the hearing. The appellant cited various judgments supporting the right to cross-examine witnesses whose statements are relied upon. The tribunal noted that the appellant consistently sought cross-examination and ruled that the Additional Collector's order was not maintainable due to the denial of this right. The tribunal emphasized the importance of cross-examination in ensuring fair proceedings.

Issue 3: Legality of penalty based solely on co-noticee's confession:
The tribunal did not delve into the legality of imposing a penalty based only on a co-noticee's confession due to the primary focus on the cross-examination issue. However, it was mentioned that the Additional Commissioner would need to adjudicate the show cause notice, ensuring the presence of Gandhi for cross-examination. The tribunal highlighted the need for proper adherence to legal procedures, including the right to cross-examine witnesses, in determining penalties based on admissions made by co-noticees.

In conclusion, the tribunal set aside the Additional Collector's order, emphasizing the importance of allowing cross-examination of witnesses and ensuring fair proceedings. The judgment highlighted the significance of following legal procedures and upholding the rights of the appellant in challenging penalties based on co-accused statements.