TMI Blog2022 (8) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms duty and penalty. The said show cause notice was also proposed to impose penalty on Appellant and some other persons involving in forging of licences. The show cause notice was adjudicated by the Commissioner vide impugned order, who imposed a penalty of Rs. 3,40,00,000/- under Section 112(a) and Rs. 1,45,00,000/- under Section 114AA of the Customs Act, 1962 on the Appellant. Hence this appeal. 3. Shri. P D Ruchchh, Learned Counsel appearing for the Appellant submits that Ld. Commissioner has grossly erred in passing the impugned order without allowing cross examination of two witness namely Shri Kalpesh Daftray and Shri Sachin Koradia. Entire case against the Appellant is based on the statements of said persons. Appellant had consistently submitted before the Ld. Commissioner to allow cross examination of said two persons that too with the grounds for cross examination and detailed final reply to the show cause notice will be filed only after cross examination. The Ld. Commissioner has therefore grossly erred in not permitting cross examination of these persons. As per the provisions of Section 138B(1)(b) of the Customs Act, 1962 once the Ld. Commissioner has choosen not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant also filed Civil Suit in court. 3.3 He further submits that DRI had examined numbers of other persons including Executive and employees of M/s Hindalco, Shri Sashin Koradia-tax consultant his employees, Directors and employees of M/s. Kshitij Marine Services Pvt. Ltd. who handled import documents of M/s Hindalco, owners of M/s Accurate Multi Trade, M/s R.R. Impex, M/s Hindustan Continental Ltd., M/s Vani Exports and M/s MPG International etc. who had arranged billing of the 93 licences covered in this Notice. None was arrested nor was made Noticee by investigation believing that they were not aware of the forgery. There is no difference between Appellant case and the case of the above persons. The allegation against the Appellant is that he was aware of fake nature of licences and its documents and in spite of the same, he knowingly dealt with the said documents which ultimately rendered him liable to penal action under provisions of the Customs Act ,1962. However, the investigation has not defined anywhere in the notice as to how he was aware of the scandal. The conclusion drawn by Ld. Commissioner in the impugned order against the Appellant for imposing penalty are frol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the impugned notice that appellant had violated provisions of the Customs Act and made the imported goods liable to confiscation is absolutely unlawful. Hence no penalty can be imposed on Appellant. He placed reliance on the following decisions. Commissioner of Customs Vs. Sanjay Agarwal -2011(269)ELT 153 (Guj.) Prakash Poonia Vs. Commissioenr of Customs, Kandla 2010 (252) ELT 442 (Tri. Ahmd.) 3.7 He further argued that when the person who actually committed thealleged offence (Importer in this case) has been totally left off from penal liability, the person assisting the alleged offender (Appellant) is entitled to the same benefit as extended to the importer. Accordingly no penalty was imposable on the Appellant. 4. Shri. Dharmendra Kanjani, Superintendent (Authorized Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order and placed reliance on the following decisions: 2021 (376) ELT 242 (SC) -Gov. of Kerala Vs. Mother Superior Adoration Convent 2004 (170) ELT 135 (SC) - Collector Of C..Ex., Culcutta Vs Alnoori Tobacco Products 2018 (361) ELT 1025 (Tri.-Del.) - Sardana Enterprises Vs. CC, New Delhi 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the submission of Appellant that M/s Hindalco had also lodged FIR against all the Directors of M/s Padmavati, M/s Vrinda and others with Dahej Police Station, however on investigation the Police of Bharuch filed Charge Sheet against Shri Kalpesh Daftary, Shri Piyesh Viramgama, Shri Vijay Gadhiya and Shri Niyaz Ahmed in the Court of Additional Judicial Magistrate, F.C., Bharuch. However the appellant or any of its director was not made party in the alleged offenceof forgery. This fact which is on record also prove that Appellant was neither intentionally involved in selling of forged licences nor were aware of such forgery. It clearly emerges that Appellant was bona-fide purchaser and seller of forged licenses and was also victim like Hindalco for forgery carried out by other persons. We also find that in the present matter M/s Hindalco has paid entire duty with interest and Ld. Commissioner also not imposed any penalty on M/s Hindalco on the ground that they have been acting in a bonafide manner. In the present matter appellant also acting in a bonafide manner and sold the disputed licence assuming that these are genuine licences like other licences which were sold to M/s Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lone can be attracted. Under this clause, the statement is relevant when (a) the person who made the statement is examined and (b) the statement is admitted in evidence after the authority forms an opinion that in the interest of justice and having regard to the circumstances of the case, it should be so admitted. Similarly in the matter of HIM Logistics Pvt. Ltd. (supra) 2016 (336) E.L.T. 15 (Del.) it was considered a case, where the noticee was not granted the right to cross-examine in a proceeding under the Act of 1962. It has held that, the denial of the request for cross-examination vitiates the order-in-original. It has held as follows :- 13. this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in Section 9D of the Central Excise Act, 1944. The circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l particulars by independent evidence. In the case of Surinder Kumar Khanna v. Intelligence Officer Directorate of Revenue Intelligence - 2018 (362) E.L.T. 935 (S.C.) the Hon ble Apex court in paragraphs 11 and 12 held as under :- 11. in Kashmira Singh v. State of Madhya Pradesh MANU/SC/0031/1952; (1952) SCR 526, this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. The KingMANU/PR/0047/1949 : (1949) 76 Indian Appeal 147 at 155 and laid down as under : Gurubachan‟s confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King. It does not indeed come within the definition of evidence‟ contained in Section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. Their Lordships also point out that it is obviously evidence of a very weak type It is a much weaker type of evidence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Board, observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence . It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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