TMI Blog2024 (2) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... on the present appellant, the same is set aside. Accordingly, as far as the present appellant is concerned, there are no merits in the impugned order and the same is set aside - the appeal of the appellant is allowed to the extent of prayer made in the appeal. - SHRI SANJIV SRIVASTAVA, MEMBER (T) Shri Shubham Agarwal, Advocate, for the Appellant. Shri Manish Raj, Authorised Representative, for the Respondent. ORDER This appeal is directed against Order-in-Original No. 06/Commissioner/LKO/2018-19, dated 8-3-2019 passed by Commissioner of Customs, Lucknow. By the impugned order Commissioner has held as follows :- F.1 I order confiscation of the seized 40,000 Kg. of Urad Ki Dal valued at Rs. 14,20,000 under Section 113(b) (d) of the Customs Act, 1962. Since, the said 40,000 kgs. of Urad ki Dal have been provisionally released to Shri Kamlesh Gupta, Prop. of M/s. Gupta trading Company on furnishing a Cash Security of Rs. 3,55,000/- and on executing a bond of Rs. 14,20,000/-, I order to appropriate the cash security of Rs. 3,55,000/- to the exchequer in lieu of this confiscation; F.2 I order confiscation of the seized Truck bearing Registration No. UP- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of arguments. 3.2 The present proceedings have arisen as the sequel of the Tribunal s Final Order No. 71737-71740/2017, dated 23-11-2017 by which the matter was remanded back to Commissioner for de novo consideration while remanding the Tribunal has observed as follows :- 5. The appellants contentions, represented through their Ld. Advocate, Ms. Surabhi Sinha, are to the effect that the statement of Shri Kamlesh Gupta has been found to be incorrect by the Adjudicating Authority himself, when he himself observed that the names of the buyers disclosed by the appellants were found to be fake/non-existing, as also the fact that he had to receive an amount of Rs. 2.59 Crores from his said buyers. As such, the Commissioner has himself concluded that Shri Kamlesh Gupta has given false statement. Nevertheless, he has relied upon the same very statement of Shri Kamlesh Gupta disclosing that the pulses in question were meant for illegal export from India to Nepal. 6. The appellants contention is that they requested for cross-examination of all the various deponents of the statements, so as to arrive at, correct factual position. She clarifies that in the Panchnama, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und itself. Accordingly, I set aside the same and remand the matter to the Lower Authorities for afresh decision, after affording the cross-examination of the witnesses, as prayed for by the appellant. 4.2 During the de novo proceedings Commissioner has expressed his inability to allow the cross examination by observing as follows :- E.1 I have gone through the records of the case including defence replies submitted by the party the order of Hon ble CESTAT. Before initiation of the discussion findings of the subject case it is pertinent to mention that the show cause notice dated 16-7-2013 of the subject case was adjudicated by the then Commissioner, Customs (P) Commissionerate, Lucknow vide Order-in-Original No. 03/vk;qDr/y[ku /2013, dated 26-9-2013. However, aggrieved by Order- in-Original No. 03//vk;qDr/y[ku /2013, dated 26-9-2013 Shri Kamlesh Gupta (owner of seized goods), Shri Vijay Shanker Tripathi (owner of seized truck no. UP-35-H-9828), Shri Bhola Shanker Pandey (owner of seized truck no. UP-78-CN-4811) Shri Rahul Mishra (supplier of the seized goods) preferred an appeal before Hon ble CESTAT. Subsequently, Hon ble CESTAT vide order dated 23-11-2017 allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it is available on records that Customs Division Nautanwa (custodian of the seized goods) was requested vide letter dated 15-1-2019 by Customs Headquarter for providing the present status regarding the release of the said seized trucks. Accordingly, the Deputy Commissioner Customs Division Nautanwa vide letter dated 30-1-2019 intimated as under :- That the seized vehicle no. UP-32 H-9828 has been released in favour of its lawful owner i.e. Shri Vijay Shanker Tripathi on deposition of redemption fine of Rs. 2,00,000/- in Govt. account; That the seized vehicle no. UP-78 CN-4811 has been released in favour of its lawful owner i.e. Shri Bhola Shanker Pandey on deposition of redemption fine of Rs. 2,00,000/- and personal penalty of Rs. 10,000/- in Govt. account; No other noticee has deposited personal penalty imposed on them. Shri Kamlesh Gupta filed an appeal before the Hon ble CESTAT against Order-in-Original No. 03/vk;qDr/y[ku / 2013, dated 26-9-2013 and deposited pre-deposit of Rs. 2,00,000/- Rs. 3,00,000/- (Total Rs. 5,00,000/-) in Govt. account. E.4 In context to above, I observe that the said vehicles have already been released to their respective own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be decided on the basis of statements, documents and replies available on record. E.9 Therefore, in light of above, I find that though every possible effort was made for the cross-examination of Panch witnesses by serving them letters not only through post but also through jurisdictional Division Office, but to their personal reasons/economic compulsion, they did not appear for cross-examination. I am, therefore, left with no option but to proceed and decide the instant matter on the basis of material available on record. I find that the following issues are to be decided for de novo adjudication of the case. 4.3 It is observed that the matter was remanded to the Commissioner with the observation that matter should be adjudicated after affording the cross-examination of de novo-proceedings. Appellant had requested for the cross-examination of panch witnesses to the Panchnama dated 19/20-1-2013. Commissioner has recorded in his order that cross examination of panch witnesses is not possible because the panch witnesses, after acknowledging the receipt of the letters dated 20-8-2018 13-9-2018, has submitted that they are daily wages laborers and are unable to attend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they failed to appear for cross-examination. The Appellant had sought cross-examination of the witnesses and had justified the reason for the same. We observe that even though the adjudicating authority had granted cross-examination of certain witnesses i.e. Mr. Ramesh Jain, Mr. Azad Derasaria, Mr. Narendra Jain and Mr. Rajeshwar Dubey none appeared for the same. We are of the view that the Department is bound to enforce the presence of the witnesses whose cross-examination was sought by the Appellant. Our views are based on the following decisions Tulsyan NEC Ltd. v. Commissioner of Customs, Chennai reported in 2003 (157) E.L.T. 627 (Mad.); Rama Shyama Papers Ltd. v. Commissioner of C. Ex, Lucknow reported in 2004 (168) E.L.T. 494 (Tri. - Del.) and Shalimar Agencies v. Commissioner of Customs, Kandla reported in 2000 (120) E.L.T. 166 (Tribunal). Since the witnesses failed to appear for cross-examination, their statements cannot be relied upon. Similar view has been taken by us in Sunland Metal (supra) in Para 10 to 12 of the order and we reiterate the same. 4.6 In similar case of Bakul Poly Pack Pvt. Ltd. [2018 (363) E.L.T. 376 (Tri. - All.)] Allahabad Bench has held as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o produce cogent and tangible evidence in support of its case. The Department relied upon the Panchnama dated 20-10-2003 which is highly questionable document and the case is not proved beyond doubt. Further, the Adjudicating Authority have violated the Principles of Natural Justice and has failed to give effect to the orders of the Commissioner (Appeals), wherein the Learned Commissioner (Appeals) had remanded the matter with the clear direction to extend opportunity of cross-examination of the Panch witnesses, which was not complied by the Adjudicating Authority. Reliance was placed on Section 18 of the Central Excise Act, 1944 which makes specific provisions with regard to the searches made under the Act, which has to be carried out in accordance with the Criminal Procedure Code, 1998. 6. The Ld. Commissioner (Appeals) have observed that it is well settled law by the Larger Bench of this Tribunal in the case of Bhillai Conductors Pvt. Ltd. reported at 2000 (125) E.L.T. 781 (3 Member Bench) wherein held that the entire burden of proving its case lies on the Revenue, who is bound to produce cogent and tangible evidence in support of its case. The Department relied upon the Panc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee does not account for any excisable goods produced or manufactured or stored by him, even without any intention to clear the same clandestinely, the goods in question will be liable to confiscation. Thus, the excess raw material and finished goods found in the factory of the respondents was liable to confiscation and the Ld. Commissioner (Appeals) have erred in setting aside the confiscation. The next ground of contention is that the Ld. Commissioner (Appeals) have erred in holding the panch witness as bad and illegal. Under the fact that there is no evidence at all that the panch witnesses were accompanying the Department officials right from the time they entered the promises of the appellants and that they were not independent and disinterested witnesses. The punch witnesses were as per records, called later on. Even, if they were not called from the locality. When seizure took place, they could be very well called from another locality as per the Cr.P.C., 1998. 8. The respondents are absent in spite of notice. It is seen that the notices sent have been returned by the Postal Department with the remark left without address. In the circumstances, it is decided to disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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