TMI Blog2023 (3) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... or establish foreign origin of the said goods. The Tribunal noted that the only evidence on the basis of which the proceedings were initiated and the order of adjudication was passed against the nine respondents is based on a statement recorded from the respondent in CUSTA 22 of 2022. All the respondents were arrested and produced before the learned Chief Judicial Magistrate, Siliguri before whom the so-called voluntary statements were retracted. Furthermore, the Tribunal noted that there was no discussion on the retraction of statements made on oath by the respondents and the witnesses who implicated the respondents were not produced for cross-examination in spite of a specific request made by the concerned respondent and this request was rejected on the ground that the occupants of the trucks had allegedly described the true facts in course of the statements recorded under Section 108 of the Act which were affirmed by the respondent. Whether the request of cross-examination could have been rejected? - HELD THAT:- On a thorough factual analysis and noting the legal position, the Tribunal came to the conclusion that the department has failed to establish that the said good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted with perversity and observed contrary to the records, committed violation of the principles of natural justice, as would be evident in paragraphs No.15, 16, 17 and 18 of the Tribunal s order and such factual findings are totally contrary and different to the factual findings of the adjudication order as is discussed and evident in grounds no. III, XIV, XV, XVI, XIX of the memorandum of appeal? III. Whether the order of the Learned Tribunal is perverse and contrary to law since the respondent herein had full knowledge of the smuggling and had deliberately and willfully involved himself in the smuggling activity and for his acts of omission and commission rendered the said goods liable for confiscation and consequent imposition of penalty upon the respondent under section 112(a) and 112(b) of the Customs Act, 1962? IV. Whether the order of the Learned Tribunal is illegal and contrary to law when admittedly the subject goods have been improperly imported into India through unauthorized route and comes under the smuggled goods defined in section 2(39) of the Customs Act, 1962 read with section 111 of the said Act? V. Whether the Learned Tribunal committed gross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggesting that they are of foreign origin and their recent importation from abroad. In this regard, reliance was placed on the decision in the case of Shantilal Mehta vs. Union of India, reported in 1983(14) ELT 1715. The Tribunal noted that the facts of the case on hand were identical to that of the facts in the case of Sudhir Saha and that the burden of proof to establish the smuggled nature of the seized goods was on the department and taking note of the factual position, the Tribunal held that the department miserably failed to discharge the burden cast upon them. Further, the Tribunal took note of the finding recorded by the Commissioner in the adjudication order wherein it has been stated that there may be a possibility that the subject betel nuts too are of foreign origin and were smuggled to India. Commenting upon the said finding, the learned Tribunal, in our view, rightly held that this finding is based entirely on presumption for which there is no legal or factual basis disclosed. That apart, the Tribunal has also examined the other facts, namely, the statements which were recorded from the respondents at the first instance, which were subsequently retracted before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case had rightly granted the relief in favour of the respondents. Furthermore, there was no testing of the seized goods through any accredited Agency for determining any constituent property or characteristic that would indicate or establish foreign origin of the said goods. The Tribunal noted that the only evidence on the basis of which the proceedings were initiated and the order of adjudication was passed against the nine respondents is based on a statement recorded from the respondent in CUSTA 22 of 2022. All the respondents were arrested and produced before the learned Chief Judicial Magistrate, Siliguri before whom the so-called voluntary statements were retracted. The Tribunal noted that it is on record that the respondent in CUSTA 22 of 2022 had retracted the statements on 16th March, 2016 before the learned Additional Chief Judicial Magistrate, Siliguri before whom he was produced after arrest. Thus, in the absence of any independent evidence to bring home a charge of smuggling, the Tribunal set aside the adjudication order. Furthermore, the Tribunal noted that there was no discussion on the retraction of statements made on oath by the respondents and the witne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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