TMI Blog2023 (3) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... s as if they were not well educated, there is no detail of their address. The Recorded Statements on their own fail to corroborate the Department s case. When any statement is recorded under Section 108, it has been clarified by the High Court that when a person who has earlier given the statement before the Gazetted Officer should reiterate the same before the Adjudicating Authority in terms of Section 138B(1). Then only the Adjudicating Authority should admit the same as an evidence. After admitting as an evidence, he should allow these persons to be crossed-examined by the other party. In the present case, the statement itself was not recorded under Section 108. In the present case, as the statements have not been recorded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tata Truck having Registration No. AS19A6756 was valued at Rs. 5,00,000/-. The total value was taken at Rs.55,33,000/-. M/s. Maa Lilori Bhander had claimed ownership of 3,000 kgs. For the balance 4,000 kgs M/s. Maa Mathurasini Bhander have come forward as owners. After investigation and due process, Show Cause Notice was issued to Maa Lilori Bhander and Maa Mathurasini Bhander and others. There were some other notices on account of penalty proposed on other noticees. After due process, the Adjudicating Authority confiscated the seized 7,000 kgs Black Pepper valued at Rs. 49,000,00/-. He imposed a penalty of Rs. 3,00,000/- on Bikash Kumar Khandhway, Proprietor of M/s. Maa Mathurasini Bhander. A penalty of Rs. 2,25,000/- was imposed on Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Aizawl, Mizoram and they were being transported to Jharkhand and after more than 3 or 4 days of travel, the seizure was effected on 26/09/2019 at Siliguri which cannot be treated as border State to arise any suspicion that the goods were of foreign origin. 3. He points out that the seizure inventory list made on 26/9/2019 does not specify as to what kind of reasonable doubt was in the minds of the officials who have seized the consignment and the vehicle. He submits that the recorded statements of various persons are not in terms of Section 108 of Customs Act, 1962 and hence, the same are not admissible as piece of evidence. He cites the case law of Hi Tech Abrasives Ltd. Vs. CCE Customs, Raipur, 2018 (362) E. L. T. 961 (Chhattisgar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper Panchnama was drawn and the Seizure Report was prepared as some of the packages had foreign markings. The official seizing had reasonable belief that these were goods of foreign origin. Statements have been recorded from various persons who have very clearly told that they have not procured these goods in the local market and they have not sold to A. Z. Enterprises. All these go on to show that the goods were of foreign origin and the same were being smuggled into India by the present Appellants. The documents like Invoice, E-Way Bill etc. were only created to show as to give a color that they were local materials. 6. Heard both sides. 7. Admittedly, the Consignment of 7,000 kgs of Black Pepper were being transported under prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to be crossed-examined by the other party. In the present case, the statement itself was not recorded under Section 108. The Hon ble Chhattisgarh High Court in the case of Hi Tech Abrasives Ltd. Vs. CCE Customs, Raipur, 2018 (362) E. L. T. 961 (Chhattisgarh) has held as under:- 9.4 The legislative scheme, therefore, is to ensure that the statement of any person which has been recorded during search and seizure operations would become relevant only when such person is examined by the adjudicating authority followed by the opinion of the adjudicating authority then the statement should be admitted. The said provision in the statute book seems to have been made to serve the statutory purpose of ensuring that the assessee are not subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded during investigation in Central Excise, as evidence of the truth of the facts contained in the said statement, it has to be held that the adjudicating authority has relied on irrelevant material. Such reliance would, therefore, be vitiated in law and on facts. [emphasis supplied] 9. This Hon ble Tribunal in the case of Ratan Kumar Saha Vs. Commr. of Customs, Patna-2021 (375) E. L. T. 435 (Tri.-Kolkata) has held as under:- xxx I also find that the statement was taken from Md. Minatullah Ansari (Appellant No. 2), who in his statement accepted paying Rs. 30,00,000/- (Rupees Thirty Lakhs only) as an advance towards purchase of gold ornaments. I do not find any rebuttal evidence on the statements of Appellant No. 1 and Shri Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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