9911796707
TMI Blog2025 (4) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 24.04.2017. The Customs Officers then recorded his statement on 24.04.2017, where he stated that he is working for the Appellant, on the instructions of the Appellant he travelled to Kolkata by Chambal Express with Rs.59,78,000/- to bring gold, he reached Kolkata on 23.04.2017 and visited the premises of one Sri Babloo situated at Bada Bazar, Sonapatti, Kolkata and handed over the amount of Rs.59,78,000/- and received 2 kgs gold from him without any papers and on 24.04.2017 when he reached Mughalsarai station by Howrah-Jodhpur Express train, he was apprehended by the GRP police officials. He also stated that the subject gold is illegally acquired and further clarified that he was informed by the Appellant and Shri Babloo that the subject gold has been smuggled from Bangladesh and brought to Kolkata after which its purity was changed from 999 to 995, while recasting the gold, the foreign origin markings were eliminated and fresh markings were impressed and the place where serial number is marked was also scratched. The recovered gold was seized vide seizure memo dated 26.04.2017 and Shri Suresh Kumar was arrested on 26.04.2017, where after he was remanded to judicial custody by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m under Section 112(b) of the Act. 4. By Order-in-Original No.09/ADC/2018 dated 06.07.2018, the SCN was adjudicated confirming the proposals made in the SCN by relying upon the statement of Shri Suresh Kumar to conclude that the subject gold bars were smuggled into India, the subject gold bars were not the gold bars sold by the two firms of Kanpur to the Appellant and Shri Suresh Kumar failed to discharge the burden under Section 123 of the Act. Penalty of Rs.4,00,000/- was also imposed on the Appellant along with penalties of Rs.2,00,000/- each on Shri Suresh Kumar and Smt. Madhubala Sheth. 5. Aggrieved with the Order-in-Original No.09/ADC/2018 dated 06.07.2018, the Appellant preferred appeal before the Ld. Commissioner (Appeals), which has been dismissed on the reasoning that the statement of Shri Suresh Kumar recorded under Section 108 of the Act is a substantive evidence, his statement was never retracted, cross-examination of Shri Suresh Kumar was never sought and hence no question of non-compliance of Section 138B arises and therefore the subject gold has been rightly confiscated and penalties have been rightly imposed. 6. Aggrieved with the impugned order, the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of Section 9D(1) exists, clause (b) of Section 9D(1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be admitted in evidence. Under this procedure, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D(1), viz. (i) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the adjudicating authority has, thereafter, to form the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. 17. There is no justification for jettisoning this procedure, statutorily prescribed by plenary Parliamentary legislation for admitting, into evidence, a statement recorded before the Gazetted Central Excise Officer, which does not suffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word "shall" in Section 9D(1), makes it clear that, the provisions contemplated in the sub-section are mandatory. Indeed, as they pertain to conferment of admissibility to oral evidence they would, even otherwise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer is examined as a witness before the adjudicating authority, and (ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing, that the statement deserves to be admitted in evidence,that the question of offering the witness to the assessee, for cross-examination, can arise. 22. 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." 7.3 Hon'ble Delhi High Court in Basudev Garg vs. Commissioner of Customs 2017 (48) S.T.R. 427 (Del) has also considered the effect of Section 138B of the Act and has held that both Section 9D and Section 138B are identical. The findings are as under:- "12. Section 138B of the Customs Act, 1962 reads as under :- "138B. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any gazetted offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of cross-examination in any quasi judicial proceeding is a valuable right given to the accused/Noticee, as these proceedings may have adverse consequences to the accused, at the same time, under certain circumstances, 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 and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to cross-examine the persons whose statements are being relied upon even in quasi judicial proceedings. The Division Bench also observed as under :- "29. Thus, when we examine the provision as to whether the provision confers unguided powers or not, the conclusion is irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Appellant and Shri Babloo informed him that the said gold has been smuggled from Bangladesh and brought to Kolkata, where it's purity was changed and on recasting, the foreign origin markings were eliminated and serial number was also scratched. A closer scrutiny of this statement, shows that the same is not based on the personal knowledge of Shri Suresh Kumar but based on what was told to him by the Appellant and Shri Babloo. Therefore, the statement, being an hear say statement cannot be relied upon solely, to conclude that the subject gold was of foreign origin and was illegally imported from Bangladesh. 7.6 The finding in the impugned order that the statement was never retracted also cannot be sustained. As noted in the SCN itself, Shri Suresh Kumar in his bail application made pleadings regarding legal and lawful possession of subject gold by M/s Kamakhya Bullion Centre and denial of the allegations made by the Revenue. The pleadings made in bail application, submitted after few days of statement, in my opinion constitutes a clear retraction of the initial statement. Once the maker of the statement resiled it, then it is no longer safe to rely on it as a substantive pi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
