TMI Blog2023 (5) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue has mainly relied upon the statement of Mr Dey to implicate the Appellant in this case. They have relied upon some decisions in the Order-in-Original to support their claim that the statement of the co-accused is an admissible evidence. The First decision relied upon by the Revenue is PRAVEEN DUMAR SARAOGI VERSUS UNION OF INDIA [ 2014 (2) TMI 643 - ALLAHABAD HIGH COURT] . The said decision was relating to granting of bail in a case of a complaint under Section 135 of the Customs Act, 1962 and subsequent application for quashing of bail under Section 482 of the Criminal Procedure Code. This is not a case similar to the present case on hand and hence, the said decision has no application in the Appellant s case. The second decision relied upon by the Revenue is NARESH J. SUKHAWANI VERSUS UNION OF INDIA [ 1995 (11) TMI 106 - SUPREME COURT] . In this case, the statement of co-accused was supported by other evidences like photographs and other intrinsic material as mentioned in paragraph 3 of the said decision and hence, the said decision is distinguishable on the facts of the case since in the case of the Appellant, there is no other evidence available to implicate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ratio of the above said decision squarely applicable to this case as well . In this case, the adjudicating Authority has not examined the person who has given the statement which has been relied upon to implicate the Appellant. Also, no opportunity of cross examination given to the Appellant to question the basis on which the co accused has implicated the Appellant in this case. When the procedure set out in Section 138 B is not followed, the statement of the co accused has no evidentiary value. The findings in the impugned order against the Appellant are not supported by any corroborative evidence and hence not sustainable - the penalty imposed against the Appellant is not sustainable and set aside the same - appeal allowed - MR. P. K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. K. ANPAZHAKAN MEMBER (TECHNICAL) Shri N. K. Chowdhury, Advocate for the Appellant Shri S. Chakraborty, Authorized Representative for the Respondent ORDER Briefly stated facts of the case are that on 02.04.2017, Officers of the DRI recovered 120 Pcs. of Gold Biscuits from the possession of Shri Bishnupada Dey and subsequently gold weighing 13993.2 gms valued at Rs. 4,08,60,120/- was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2017, 140 Pcs. of Gold Biscuits were recovered and in the course of follow up action of the said case, the shop premises, G.D. Gold House at 3rd Floor of Nalini Seth Road, Kolkata, was searched and Indian Currency of Rs.43,12,280/-, believed to be the sale proceeds of smuggled gold, were recovered and seized. It was inferred that Shri Gobinda Babu mentioned by Shri Bishnupada Dey and the Proprietor of G.D. Gold House, Sri Gobinda Das were one and the same person. Shri Gobinda Das (Appellant) was summoned but he did not appear. 4. The Appellant along with others were issued with a Show Cause Notice vide DRI F. No. DRI/KZU/AS/ENQ-23/2017/3390 dated 26.09.2017. An Order-in-Original dated 11.01.2019 was issued by the Principal Commissioner of Customs confiscating the gold seized. He also imposed penalty of Rs.4,08,60,120/-under section 112(b) of the Customs Act, 1962 on both Gobinda Babu and Ratan Kumar Saha. The Appellant is before us against the imposition of penalty in the impugned order. 5. The Appellant stated that findings in respect of his role are detailed in Paras- 38.25.1 to 38.25.6 and para 38.29 of the Order-in-original. The findings contained therein are based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to support the other evidences, if any, adduced by the prosecution. iii) Assistant Collector of Customs Vs. Amrik Singh 2014 (301) ELT 170 (P H) . The question arises whether the admission of co-accused under Section 108 of the Customs Act can be basis of conviction of other co-accused. The Ld. Trial Court has rightly held that statement of co-accused under Section 108 of the act against the co-accused with a weak type of evidence and conviction of co-accused cannot be based on the uncorroborated statement of co-accused. iv) Anisur Rahaman Vs. Commissioner of Customs (Prev.) West Bengal 2003 (160) ELT 816 (Tri-Kolkata). Non-appearance before DRI Officer in response to summons is not a ground for holding that the appellant is guilty-The entire case is based upon the statement of the Driver which is in the nature of uncorroborated statement of a co-accused and cannot be made the sole-basis for penalizing the appellant. v) Jahed Mondal Vs. Commissioner of Customs (Prev.), West Bengal- 2002 (149) ELT 319 (Tri.-Kol.) Para 8 11.). Penalty has been imposed upon Shri Jahed Mondal based upon the statement of Bablu Biswas who was intercepted by the Customs Officer from w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionale behind the above precaution contained in clause (b) of Section 9D(1) is obvious. The statement recorded during inquiry/investigation, by the Gazetted Central Excise Officer, has every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D (1) mandates that the evidence of the witness has to be recorded before the Adjudicating Authority, as in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 9. The appellant submits that the Adjudicating Authority, therefore, should follow the procedure to rely on the statement as relevant for proving the truth of the contents of the statement, to admit the statement in evidence. In this case, the said mandate has not been followed and hence the statement of the co-accused in this case cannot be said to be voluntary and his statement also cannot be said to be true and correct and shall not be taken as eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... biscuits. He relied upon the decisions cited by the Adjudicating Authority in the para 38.25.1 of the O-i-O in support of his argument that the statement of a co-accused can be relied upon and it is an admissible evidence. 14. Heard both sides and perused the evidences available on record. 15. We find that the entire case of the Revenue has been built on the basis of the statement of the co-accused. The adjudicating Authority has given his findings about the role of the Appellant in paras 38.25.1 to 38.25.6 and para 38.29. For the sake of ready reference the relevant paras are reproduced below. 38.25.1. I have perused the reply of Shri Gobinda Das to the instant Show Cause Notice. I find that Shri Bishnupada Dey had on interception confessed on 02.04.2017 that he was offred the work of carrying smuggled gold in lieu of monetary remuneration by Gobindababu @ Gobinda Das. I find that Bishnupada Dey had at the outset admitted the role of Gobindababu i.e. Gobinda Das in the gold smuggling operations. I find that Bishnupada Dey taking the name of Gobindababu i.e. Gobinda Das without any hesitation and also furnishing a detailed picture of the activities of Gobindababu i.e. Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in such nefarious activities. In view of the aforesaid, the defense by Shri Gobinda Das @ Gobindababu that the mobile Number 8276875110 belonged to another person and thus the Call Details cannot be attributed to him is liable to be rejected outright. 38.25.6. In view of the aforesaid, I find that the defense submitted by Shri Gobinda das @ Gobindababu, is at Variance with the facts of the case, the admissions of Shri Bishnupada Dey in Course of his statements recorded under Section 108 of the Customs Act, 1962, which has specified the role of Shri Gobinda Das @ Gobindababu in the smuggling operations and is thus liable to be rejected outright. 38.29.I find Shri Gobinda Das @ Gobindababu has played a prominent role in the smuggling of subject gold from Bangladesh and its delivery at Kolkata/Dumdum. It is indisputable that Shri Gobinda Das @ Gobindababu had engagned Shri Bishnupada Dey to carry the smuggled gold from Bisirhat to Kolkata in return from monetary consideration. It is admitted that Shri Gobinda Das had introduced Shri Ratan Kumar Saha to Shri Bishnupada Dey and it is evident that he instructed Shri Dey to deliver the smuggled gold biscuits to Shri Saha. Summon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is without any supporting evidence. 19. Revenue has mainly relied upon the statement of Mr Dey to implicate the Appellant in this case. They have relied upon some decisions in the Order-in-Original to support their claim that the statement of the co-accused is an admissible evidence. We have examined the decisions cited by the Adjudicating Authority and our observation about the relevancy of those cases in the present case is as below: 19.1 The First decision relied upon by the Revenue is Paraveen Kumar Saraogi Vs. Union of India reported in 2014 (299) ELT 151 (All.). The said decision was relating to granting of bail in a case of a complaint under Section 135 of the Customs Act, 1962 and subsequent application for quashing of bail under Section 482 of the Criminal Procedure Code. This is not a case similar to the present case on hand and hence, the said decision has no application in the Appellant s case. 19.2. The second decision relied upon by the Revenue is Naresh J. Sukhawani Vs. Union of India reported in 1996 (83) ELT 258 (S.C.). In this case, the statement of co-accused was supported by other evidences like photographs and other intrinsic material as mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relied upon by the Adjudicating Authority. They have referred sections 138 B of Customs Act 1962 and section 9D of Central Excise Act,1944, which are pari materia to each other. The contention of the Appellant is that the Adjudicating Authority has not followed the procedure prescribed in the said sections before relying on the said statement of the co-accused in this case and hence any conclusion arrived at on the basis of that statement is legally not tenable. For the sake of ready reference the said sections are reproduced below: 22. 138B. Relevancy of statements under certain circumstances, (I) A statement made and signed by a person before any Gazetted Officer of customs during the course of any inquiry or proceeding under this act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the 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 or expense which, under the circumstances, of the case, the court considers unreaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caps referred in Section 9D(1)(a) ibid apply - Hence, adjudicating authority cannot straightaway rely on such statement unless and until he can legitimately invoke Section 9D(1)(a) ibid - In all other cases, to rely on for proving truth of contents of statement, he has to first admit statement in evidence in accordance with Section 9D(1)(b) ibid, for which he has to summon person who had made statement, examine him as witness before him in adjudication proceeding, and arrive at opinion that statement should be admitted in interests of justice - Only thereafter, question of offering witness to assessee for cross-examination can arise. - Clearly, if this procedure, which is statutorily prescribed by plenary Parliamentary legislation, is not followed, it has to be regarded, that the Revenue has given up the said witnesses, so that the reliance by the CCE, on the said statements, has to be regarded as misguided, and the said statements have to be eschewed from consideration, as they would not be relevant for proving the truth of the contents thereof. [paras 16, 17, 18, 19] Evidence - Statement before Central Excise Officer - Relevancy of - Procedure prescribed in Section 9D(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to issuance of such show cause notice not a statement recorded in course of inquiry or proceeding and no right accrues in favour of noticee to insist on cross-examination of witnesses, whose statements have been recorded and referred to in show cause notice, even prior to a reply thereto being submitted - Question of cross-examination of witnesses would arise only after statements of witnesses are recorded by relevant authority in course of adjudication proceedings. [para 12] 25. We find that section 9D is pari materia to Section 138 B of Customs Act 1962 and hence the ratio of the above said decision squarely applicable to this case as well . In this case, the adjudicating Authority has not examined the person who has given the statement which has been relied upon to implicate the Appellant. Also, no opportunity of cross examination given to the Appellant to question the basis on which the co accused has implicated the Appellant in this case. When the procedure set out in Section 138 B is not followed, the statement of the co accused has no evidentiary value. Also, in this case the statement of the co accused has not been corroborated by any other evidence. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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