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2023 (5) TMI 988 - AT - CustomsPenalty under Section 114(i) & 114AA of Customs Act - seized foreign currency - whole case is made out on assumptions and presumptions, relying on the statement of Mr. Manoj Phulwani - HELD THAT:- There is no evidence that the seized and confiscated foreign currency was given by the appellant to Mr. Manoj Phulwani. It is further found that the statement of Mr. Manoj Phulwani is not reliable piece of evidence, as revenue have failed to comply with the mandate of Section 138B of the Act. Section 138B(b) requires that such person who made the statement has to be examined as witness in the adjudication proceedings, and if the adjudicating officer having regard to the circumstances of the case, admits the same in evidence, thereafter, such witness should be offered for cross examination by the noticee and only after such statement is tested in cross examination, the same can be relied upon. Sub-section (2) of Section 138B categorically provides that the mandate of Section 138B(1) shall so far as may be, apply in relation to any proceedings under this act, other than a proceeding before a court, as they apply in relation to a proceeding before a court. Appeal allowed.
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