Preparing counter to Defense submitted by the Noticee in response to SCN served is crucial job while working for Adjudication Section. The SCN is a statement of facts and charges levelled against the noticee issued by Investigation. In response to the charges communicated to the noticee, he would exercise his right to defend and submit an elaborate document usually through his advocate. The document contains his argument against the charges confirmed by the Investigation. Your being part of Adjudicating mechanism, the arguments drafted ought to be supported by suitable case laws or the facts or by both.
As the defenses/arguments submitted by the noticees are a mix of challenging the facts as well as interpretation of extant provisions to suit their interest, a sketch of draft comes in really handy for the officers. The counters to the defenses should more precisely be termed as “addressing the concerns” in so far as the proceedings are in a stage of Adjudication. The instant post although doesn’t claim to be perfect yet could be really useful. You can customize these counters to suit the case in your hands and can make it more relevant.
1. Noticees are Victim in a Case of Smuggling Fabricated against Them by the Officers of Customs
>In this regard, I find the contention to be challenging facts of the case in first place. On the contrary, I find that the facts of the case are properly recorded and the case is not made out of air. By alleging fabrication of the case, the noticees essentially challenge the very basic elements of the case and intend to say; that they all were not caught on Mumbai airport by AIU, that Mr. Mukesh Singh did not land from Bangkok with gold, that all the four noticees had not assembled in toilet on their own; that all the four passengers knowing to each other were flocked into toilet by the Customs officers and so on. I find these contentions to be lame in nature and extraneous. Further, challenging the facts can be done before investigation when summoned to give evidences and produce documents. Sadly, the fact that all the four intercepted passengers who owed allegiance to the one Mr. Dildar Singh, did not come forward to dispute the fact that entire arrangements for smuggling was done by him. As an adjudging officer I have to rely on the facts recorded under due procedure of law and I do not find the scope of stating the material particulars in any other way than recorded. Allegation of fabrication and cooking up story is only another way to narrate the facts which is not permissible as the facts are not subject to interpretations. Accordingly, I do not seem the allegations holding any truth and the facts have to be relied upon as is.
2. Fishing Expedition has been Roped in, instead Reasonable Belief for seizure
>In this regard, I find the noticees taking objection to the narration “Names of a few suspected international transit passengers were shortlisted to be followed and checked by the officers” which is one and the same in seizure Panchanama and in SCN. The process of zeroing in, is trade secret of the intelligence and it is only consequent to reasonable belief which is arrived after meticulous study and analysis of travel data and statistics with reference to international commuters. It is no way indiscriminate search. Obviously, the seizing unit would zero in on only a few passengers when they have certain grounds of reasonable belief. I have gone through the case laws over which reliance is placed and I find two guiding principles mainly: that powers of Customs officer should not be vested with malafides and that it should not be indiscriminate without justification. The recovery from three domestic passengers viz. Mr. Suren Singh, Mr. Viren Singh and Mr. Dhiren Singh on follow up of Mr. Mukesh Singh speaks volume of no-malafides of the officers. Accordingly, I find that ratios of the cited judgements are not applicable to the present case. I also find that comparing the process of serving summons for indiscriminate search doesn’t apply to the instant case.
3. Copy of the Seizure Panchanama and Statement Were not Given to the Noticees
>In this regard, I find that there is a dated signature over the panchanama and statements as a token of standing witness to the recovery and seizure proceedings and having received a copy of the same. Later, these documents also formed part of enclosure to the SCN served on all the four Noticee. Accordingly, I do not see any merit in the claims made that prejudiced was caused to the Noticees.
4. Noticees’ Statements Were Involuntary and Against the Truth and That it Cannot be Relied Upon
>In this regard: i)I find that statements have been recorded under section 108 of the Customs act, 1962 without using police interrogation techniques such as narco-analysis, the lie detector test and brain-mapping. Accordingly, the statements are not extracted or forced but are rather voluntary ones and are not liable be hit by section 25 or 24 of evidence Act or the Fundamental Rights guaranteed by the Constitution. Hon’ble Supreme Court in the case of K.I. Pavunny Vs. Assistant Collector(HQ), Central Excise Cochin, (1997) 3 SCC 721 has also held that: “Even though the Customs officers have been invested with many of the powers which an officer in charge of a police station exercises while investigating a cognizable offence, they do not, thereby, become police officers within the meaning of Section 25 of the Evidence Act and so, the confessional statements made by the accused persons to Customs officials would be admissible in evidence against them.”
ii)I have gone through the statutory provisions of Section 108 of the Customs act, 1962 and I find that Section 108 is a machinery to gather evidence in case of violations/offence under the Customs Act. This proceeding is deemed to be judicial in nature in terms of Section 193 and 228 of IPC, therefore statements made cannot be barred from being a relied upon evidence.
iii) In the case of Naresh J. Shukawani v. Union of India – 1996 (83) E.L.T. 258 (S.C.) it was observed that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973 and therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. It was further stated by the Hon’ble Court that if such a statement incriminates the accused, inculpating him in the contravention of the provisions of the Customs Act, it can be considered as substantive evidence to connect the accused with the contravention of the provisions of this Act.
iv)It is a settled law that the statements recorded under Section 108 of Customs Act is relevant and admissible evidence as held in umpteen number of legal pronouncements. Inquiry under Section 108 is deemed to be judicial proceedings. The person summoned under this Section is bound to state the truth. It has been held that Section 108 is an enabling act and an effective tool in the hands of Customs to collect evidences in the form of voluntary statements. The Hon’ble Courts in various judicial pronouncements have further strengthened the validity of this enabling provision and it has been affirmed that statement given before Customs officers is a material piece of evidence and can certainly be used as substantive evidence. Further, these Statements are not hit by bar of admissibility under either Section 25 of the Evidence Act, 1872 or Article 20(3) of the Constitution of India and is presumed to be truthful.
v) In the case of Shri Naresh J. Sukawani v. Union of India 1996 (83)L.T. 258 (S.C.) it is held “4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act.”
vi) Noticees claim of denial to him to write his statements on his own seems purely judgemental. I do not find any such protest on record, registered by them during these proceedings and instead, I see their signature as a mark of having consented to recording of their statements. The claims of the Noticees also seems challenging the competence of the officers who typed in the Noticees’ voluntary statement and the legitimacy of the independent panchas. In this regard, I see the statements are recorded in presence of a gazetted Customs officer as per law. I also see that statements are read over to the noticees and only then they signed the copy of their statements and Panchanama having found in order.
I accordingly find no merit in the Noticees’ claim that their statements are involuntary.
5. The Retracted Statement of the Noticees in absence of any Corroborative Evidence from an Independent Source Outside the Confession Cannot be relied upon
>In this context, the fact remains that there is no sane person who would like his very own admissions and confessions to work against him. The Noticee are no different and hence chose to retract their statements using their afterthoughts but this doesn’t seem to change the de-facto position of the material facts and the precedent rulings. I find that:
i). The Apex Court in the case Hazari Singh V/s. Union of India reported in 110 E.L.T. 406, and case of Surjeet Singh Chhabra V/s. Union of India & Others reported in 1997 (1) S.C.C. 508, has held that the confessional statement made before the Customs Officer even though retracted, is an admissible and binding on the person.
ii). The Hon’ble Supreme Court in the case of Badaku Joti Savant Vs. State of Mysore [ 1966 AIR 1746 = 1978 (2) ELT J 323 (SC 5 member bench)], laid down that statement to a customs officer is not hit by section 25 of Indian Evidence Act, 1872 and would be admissible in evidence and in conviction based on it is correct.
iii). In the case of Raj Kumar Karwal Vs. UOI & Others (1990) 2 SCC 409, the hon’ble Court held that officers of the Department of Revenue Intelligence who have been vested with the powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not police officers within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officers in the course of investigation of a person accused of an offence under the Act, is admissible in evidence against him.
iv). There is no law which forbids acceptance of voluntary and true admission statement if the same is later retracted on bald assertion of threat and coercion as held by Hon’ble Supreme Court in the case of K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Cochin, (1997) 3 SCC 721.
6. That for the Confessions of Accused to be Relied upon There Should be Corroborative Evidence
>In this regard, i) I find that when there are instant recoveries made under due procedure of law and the voluntary confessions are made right away, other corroborations should not matter. Moreover, the recoveries are not made out of fluke or chance; the breakthrough of recoveries are a result of officers’ diligence like: data analysis, vigilant approach, information processing and eventual unfolding of the circumstances all recorded properly. I find the recoveries from the passengers makes the foundation of this case and not the ‘preponderance of probability’. The recoveries being ‘beyond doubt’ the other recoveries big or small don’t count.
ii) I find that the seized crude gold valued at Rs. 1,80,00,000/- was recovered from the three noticees viz. Mr. Suren Singh, Mr. Viren Singh and Mr. Dhiren Singh and during the personal search of all three in presence of Mr. Mukesh Singh the noticee no. 1 and the independent Panchas. Further, the cross identification of the passengers have properly been recorded and they severally and jointly agree to the recovery and the events preceding.
iii) I find that incriminating evidences recovered from the premise search are not defended by the noticees. Instead, the two of the admitted kingpins are at large defying all summons and notices of the investigation.
7. Statements of co-accused for Incriminating the Noticees Cannot be Used as Evidence
>In this context, I agree that Statement of a co-accused does not fall within the definition of evidence under section 3 of the Evidence Act but only when Statement of co-accused has been recorded in absence of another Co-accused. In the instances when these statements are made in presence of other co-accused it assumes the nature of “fact” within the meaning of section 3 of Evidence Act. Moreover, when these statements are made before a Customs officer, the statements though incriminating, assumes evidentiary significance for judicial proceedings. I find that the confrontational Panchanama records the say of all the four accused whose veracity is already tested by one another. On top of everything, the statements are not recorded for the purpose of reaching a recovery, the statements of co-accused are recorded subsequent to the recovery.
8. Further Statements of Accused Cannot be Relied Upon (as he is no more a witness after recovery & arrest)
>In this regard, under the further statements of the Noticee Mr. Mukesh Singh and other co-accused, I do not see any new revelation amounting to further incrimination of theirs. I see the statements as mere repetitions of the earlier statements that revolves around the relationship absconding Mr, Dildar Singh and as such no element of coercion or forceful extractions of statement is seen. A complete appreciation of the statement gives a sense of it being voluntary in nature. The case law referred by the notice for reliance i.e, “A.T. Maideen vs The Senior Intelligent Officer in Madras High Court” doesn’t seem to stop from conducting enquiry. Of course, it bars the inquiry officer from using compulsion, threat, duress or by other similar means. I find the judgement highlighting the necessity of voluntary statements and duty of the person summoned to speak truth. I find the hon’ble court holding that “It is not in doubt that the officer concerned has the power, under Section 108 of the Customs Act, 1962, to summon any person to appear before him, for an enquiry. It is the duty of the person so summoned to state the truth before the officer concerned. However, the statements made by the person concerned ought to be voluntary in nature…”. In any case, the later stage admissions of the noticees are not the foundation of the charges levelled and the case mainly relied on the initial stage recovery from person and right forth confessions. I could find the further statements recorded under coercion if the noticees would have clearly implicated a new person, viz. Mr. Naren Singh about which although they give an impression but not with total clarity. Accordingly, I do not see the further statements of accused to be hit by Article 20(3) of the Constitution.
9. The noticees are neither carriers nor professional smugglers and the instance of offence is solitary in Nature
>In this context: i) I find that voluntary statements made by the Noticees are about confessions of possession, carriage, non-declaration, concealment and recovery of the crude gold ie “11 chains, 05 kadas and 07 pendants totally weighing 6545 grams” put under seizure. And also that, they all acted on instructions of Mr. Dildar Singh.
ii) Later stage statements of the noticees along with those of others viz. Mr. Ashok Singh and Mr. Dharmesh Singh have substantiated the fact that all the four notices worked for Mr. Dildar Singh and Mr. Naren Singh.
iii) I find from the findings of the investigation that material evidences recovered during premise search, the statements of Mr. Ashok Singh and Mr. Dharmesh Singhand evading efforts of Mr. Dildar Singh and Mr Naren Singh are indicative of an intricate design employed in seasoned smuggling.
iv) Notwitstanding anything above, I find that making maiden attempt of offence or being seasoned offender shouldn’t make much difference in the eyes of law. The provisions of extant law seem to be working equally for both kinds of offenders without providing immunity or relaxation to anyone.
v) I also find that the investigation has sufficient and valid evidences to rely upon and it didn’t issue the SCN based on mere preponderance. If at all, the element of preponderance is apprehended by the noticees, it arises because Mr. Dildar Singh and Mr Naren Singh never joined the Investigation. I wonder, why would a person with clean hands not join the investigation after repeated summons. I find that they apprehend of being exposed as next level corroboration to an organized crime of which these four were mere faces.
10. Remand of the Noticees to Judicial Custody was illegal
>With respect to this contention, i) it seems Noticees are heavily relying on the superficial reading of ‘Revised Guidelines for Arrest and Bail’ issued by the Board vide circular 28/2015-Customs.
ii) I have gone through the Revised Guidelines for Arrest and Bail in relation to offences punishable under Customs Act, 1962, issued vide Circular No.28/2015-Customs dated 23.10.2015. The relevant para 2 of the said Circular reads as:
2.Accordingly, the para 2.3 of the existing guideline issued vide F. No.394/68/2013- Cus (AS) dated 17.09.2013 shall read as under:
“2.3 While the Act does not specify any value limits for exercising the powers of arrest, it is clarified that arrest in respect of an offence, should be effected only in exceptional situations which may include:
(a) Cases involving unauthorised importation in baggage/ cases under Transfer of Residence Rules, where the CIF value of the goods involved is Rs. 20,00,000/- Rupees Twenty Lakh) or more;
(b) Cases of outright smuggling of high value goods such as precious metal, restricted items or prohibited items or goods notified under section 123 of the Customs Act, 1962 or offence involving foreign currency where the value of offending goods is Rs. 20,00,000/- (Rupees Twenty Lakh) or more;
(c) In a case related to importation of trade goods (i.e. appraising cases) involving wilful mis-declaration in description of goods/concealment of goods/goods covered under section 123 of Customs Act, 1962 with a view to import restricted or prohibited items and where the CIF value of the offending goods is Rs.1,00,00,000/- (Rupees one crore) or more;
(d) Fraudulent availment of drawback or attempt to avail of drawback or any exemption from duty provided under the Customs Act, 1962, if the amount of drawback or exemption from duty is Rs. 1,00,00,000/- (Rupees One Crore) or more. In cases related to exportation of trade goods (i.e. appraising cases) involving (i) wilful mis-declaration in value / description; (ii) concealment of restricted goods or goods notified under section 11 of the Customs Act, 1962, where FOB value of the offending goods is Rs. 1,00,00,000/- (Rupees One Crore) or more.
(e) The above criteria of value mentioned in sub para 2.3 (a) to 2.3 (d) would not apply in cases involving offences relating to items i.e. FICN, arms, ammunitions and explosives, antiques, art treasures, wild life items and endangered species of flora and fauna. In such cases, arrest, if required, on the basis of facts and circumstances of the case, may be considered irrespective of value of offending goods involved.”
iii). Recovery of 11 chains, 05 kadas and 07 pendants totally weighing 6545 grams as crude gold of 999% purity (24KT) valued at Rs. 1,80,00,000/- from the passengers together, is undoubtedly an act of outright smuggling and the value stands much beyond the set bar for arrest.
iv) Provisions of Para 2.3 (a) and (b) of the amended Circular No. 38/2013-Customs issued vide F. No. 394/68/2013- Cus (AS) dated 17.09.2013 are thus, attracted in the instant case and not the other way round as contended by the Noticees. Accordingly, I do not see merit in the claims made by the Noticees.
11. Cross-Examination is a Legal Right Available to the Accused it is One Part of the Natural Justice
>Under the said submission, the noticees have requested for cross examination of the panchas and Customs officers. So, I proceed to examine the issue of request of Cross examination of concerned persons by the noticee/s, on the basis of merit and in accordance with law.
i)I find that cross examination emanates from rule of evidence. Examination of a witness by the adverse party is called cross examination. Section 137 of the Evidence Act provides for examination, cross- examination and re- examination. Section 138 of the Evidence Act confers right on the adverse party to cross examine a witness who had been examined in chief. Corollary is that a cross examination is followed by the examination in-chief. This indicates that cross examination is an integral part of rule of evidence on which criminal jurisprudence proceeds.
ii)Now adverting to customs law, to find out the source of cross-examination in the statute, I find that the mandate with regard to cross-examination lies in section 138 B of the Customs Act, 1962. Relevant portion of section 138 B is extracted and reproduced as under;
SECTION 138B. Relevancy of statements under certain circumstances. — (1) 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 unreasonable; or
(b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice.
(2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court.]
However, this section does not have such arrangement for examination-in-chief and re-examination. Distinction is observed between Section 138B and provision of Evidence Act respecting cross examination and the reason for this marked difference is that the ‘rule of evidence’ is applied in toto in the criminal law, whereas the customs law being a civil law proceeds on the preponderance of probability.
iii)Reading of the Section 138B which falls under Chapter XVI – OFFENCES AND PROSECUTIONS- says that 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 in the judicial proceedings. Sub-Section (2) lays down that, provisions given under 138B (1) shall may apply to any other proceedings under the Customs Act. Any other proceedings cover the adjudication proceedings as well. But the language of the section indicates that this provision would be applicable as far as possible in the other proceedings also. It means that provisions under section 138 B (2) are not totally applicable in the case of any other proceedings as envisaged by the legislature, which covers adjudication proceedings also. The sub-section uses the word “may” which suggests that permission to grant cross-examination is the discretion of the adjudicating authority.
iv)Still, as in adjudication proceedings under customs law, the highest regard is accorded to the principle of natural justice under which the cross-examination is also covered, it implies that the adjudicating authority in the interest of justice, is required to see whether the same is absolute necessity, so that the miscarriage of justice could be avoided. Further, I find that cross examination also becomes necessary in such situation wherein the outcome of the case only rests upon the statement of the person whose cross-examination has been sought. But when there are other evidences available which proves the guilt of the Noticee, then there is no apprehension of affecting the outcome of the case upon denial of cross-examination, in any significant manner. I find that the request for cross-examination of the panchas is neither feasible nor is going to change the material particulars of the case.
v) Further the noticees have sought cross examination of the investigating officers who conducted the investigation, examined & took the statements of the noticees and drew the panchanama. I find that as going by the provisions of Section 138 B(1), cross-examination of only those persons can be sought whose statements have been recorded before a gazetted officer, as no statement of an Investigating Officer and any other officer has been recorded in this case, the cross-examination of them cannot be granted under section 138B(1). To support my view, I rely on following case laws;
(a) N.S. MAHESH Versus COMMISSIONER OF CUSTOMS, COCHIN, 2016 (331) E.L.T. 402 (Ker.) W.P. (C) No. 34057 of 2015 (F), decided on 11-11-2015
Adjudication – Cross-examination of departmental officers – Denial upheld – Petitioner seeking cross-examination of all officers who assessed, audited and examined import consignment – No infirmity in reasoned order of adjudicating authority in denying request on ground that no statement of said officers relied in show cause notice issued on basis of documents only and that no specific reasons given for cross-examination – Section 122A of Customs Act, 1962 – Article 226 of Constitution of India. [paras 1, 2]
(b) JSW STEELS LTD. Versus COMMISSIONER OF C. EX., BELGAUM, 2010 (254) E.L.T. 318 (Tri. – Bang.)
Natural justice – Cross-examination – Classification issue – Denial of cross-examination of departmental officer not violating natural justice as such officers do not contribute to judicial determination of classification. [para 9]
vi). Further, I find that request for cross-examination is not acceptable as in the following case laws, it has been held that right to compliance to the principles of natural justice does not cover the right to cross-examination of the witnesses during quasi-judicial proceedings:
a) In Hon’ble Supreme Court of India in the case of Kanungo & Co. Vs. Collector of Customs, Calcutta & Others – 1993 (13) ELT 1486(SC), wherein it was unequivocally held that for proceedings under the Customs Act the right to compliance to the principles of natural justice does not cover the right to cross examination witnesses. In fact, I would like to re-produce para 12 which is relevant para, wherein the Hon’ble Supreme Court observed as follows:
“We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the Show Cause Notice issued on August 21, 1961, all the materials on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly, we hold that there is no force in the third contention of the appellant”.
The above view of the Hon’ble Supreme Court was reiterated in several decisions of the Calcutta High Court, viz. Kishan Lal Agarwal Vs. Collector of Land Customs (AIR 1967 Calcutta 80), Tapan Kumar Biswas Vs. UOI (1996 63) ECR 56) and it was held that in a proceeding under the Customs Act the proceedees are not entitled to cross-examine the witnesses.
b) In the case of Suman Silk Mills Pvt. Ltd. Vs. Commissioner of Customs &C.Ex., Baroda [2002 (142) E.L.T. 640 (Tri.-Mumbai)], Tribunal observed at Para 17: “Natural Justice – Cross-examination – Confessional statements – No infraction of principles of natural justice where witnesses not cross-examined when statements admitting evasion were confessional.”
c) In the case of Commissioner of Customs, Hyderabad V. Tallaja Impex reported in 2012(279) ELT 433 (Tri.), it was held: “In a quasi-judicial proceeding, strict rules of evidence need not to be followed. Cross examination cannot be claimed as a matter of right.”
d)In the case of Patel Engg. Ltd. vs UOI reported in 2014 (307) ELT 862 (Bom.) Hon’ble Bombay High Court held: “Adjudication – Cross-examination – Denial of, held does not amount to violation of principles of natural justice in every case, instead it depends on the particular facts and circumstances – Thus, right of cross-examination cannot be asserted in all inquiries and which rule or principle of natural justice must be followed depends upon several factors – Further, even if cross-examination is denied, by such denial alone, it cannot be concluded that principles of natural justice had been violated.” [para 23]
e) Hon’ble Tribunal in its decision in Sridhar Paints v/s Commissioner of Central Excise, Hyderabad reported as 2006(198) ELT 514 (Tri-Bang) held that:
“……………. denial of cross-examination of witnesses/officers is not a violation of the principles of natural justice, we find that the Adjudicating Authority has reached his conclusions not only on the basis of the statements of the concerned persons but also the various incriminating records seized. We hold that the statements have been corroborated by the records seized” (Para 9)
f) Hon’ble Punjab and Haryana High Court in its decision in the case of Azad Engg Works v/s Commissioner of Customs and Central Excise, reported as 2006(2002) ELT 423, held that; “………. It is well settled that no rigid rule can be laid down as to when principles of natural justice apply and what is their scope and extent. The said rule contains principles of fair play. Interference with an order on this ground cannot be mechanical. Court has to see prejudice caused to the affected party. Reference may be made to judgment of Hon’ble the Supreme Court in K.L. Tripathi v. State Bank of India and others, AIR 1984 SC 273”.
g) Hon’ble Tribunal in the case of P Pratap Rao Sait v/s Commissioner of Customs reported as 1988 (33) ELT (Tri) held in Para 5 that:“………. The plea of the learned counsel that the appellant was not permitted to cross-examine the officer and that would vitiate the impugned order on grounds of natural justice is not legally tenable.
h) Similarly in A.L Jalauddin v/s Enforcement Director reported as 2010(261) ELT 84 (Mad HC) the Hon’ble High court held that: “…. Therefore, we do not agree that the principles of natural justice have been violated by not allowing the appellant to cross-examine these two persons. We may refer to the paragraph in AIR 1972 SC 2136 = 1983 (13) E.L.T. 1486 (S.C.) (Kanungo & Co. v. Collector, Customs, Calcutta)”
vii) Further, it is a settled position that proceedings before the quasi-judicial authority is not at the same footing as proceedings before a court of law and it is the discretion of the authority as to which request of cross examination to be allowed in the interest of natural justice. I also rely on following case-laws in reaching the above view.
a) Poddar Tyres (Pvt) Ltd. v. Commissioner – 2000 (126) E.L.T. 737: – Wherein it has been held that cross-examination not a part of natural justice but only that of procedural justice and not a ‘sine qua non’.
b) Kumar Jagdish Ch. Sinha v. Collector – 2000 (124) E.L.T. 118 (Cal H.C.): – wherein it has been held that the right to confront witnesses is not an essential requirement of natural justice where the statute is silent and the assessee has been offered an opportunity to explain allegations made against him.
c) A.K. Hanbeen Motarred vs. Collector – 2000 (125) E.L.T. 173 (Mad HC): wherein it has been held that the strict rule of burden of proof applicable to criminal prosecution may not be applicable to proceedings before Customs authorities.
d) Shivom Ply N-Wood Pvt. Ltd. Vs Commissioner of Customs & Central Excise Aurangabad- 2004(177) E.L.T 1150(Tri. -Mumbai): – wherein it has been held that cross-examination not to be claimed as a matter of right.
viii) Request for cross-examination of Customs officers who recorded statements / investigating officer is not acceptable in view of following case laws:
a) Hon’ble CESTAT, Delhi in its decision in the case of Om International vs CC, New Delhi reported in 2007 (217) ELT 88 (Tri. Del.)held that: “………appellants have not been prejudiced in any manner by denial of Cross-examination of seizing officer, panch witnesses and officers, who recorded statement. Contents of these statements are fully reproduced in show cause notice itself and appellants have been granted ample opportunities to reply the same.
b) In the case of Liyakat Shah Vs. Commissioner of C.Ex., Indore-II(Bhopal) [2000(120) E.L.T.556(Tribunal)]. Relevant portion of the above judgment contained in Para 12, is reproduced herein below –
“Natural justice – Cross-examination is not a mandatory procedure to be allowed in all cases – When the adjudicating authority took the view that cross-examination of seizing officer, where goods seized from godown of assessee when no allegation that officers had not followed proper procedure for effecting seizure, was sought only by way of delaying tactics to avoid justice, his order refusing to allow cross-examination not violative of the principles of natural justice…”.
c) Hon’ble Punjab High Court in the case Ranchodbhai M. Patel vs. Central Board of Revenue, New Delhi reported as 2000 (125) ELT 281 (Punj.) held that:“Natural justice – Petitioner himself having signed the panchnama made in his presence, production of panchas before him for cross-examination not necessary – Principles of natural justice not isolated – Section 122 of the Customs Act, 1962.”
d) Hon’ble Tribunal in its decision in Sridhar paints v/s Commissioner of Central Excise Hyderabad reported as 2006(198) ELT 514 (Tri-Bang) held that:“…………denial of cross-examination of witnesses/officers is not a violation of the principles of natural justice, we find that the Adjudicating Authority has reached his conclusions not only on the basis of the statements of the concerned persons but also the various incriminating records seized. We hold that the statements have been corroborated by the records seized” (Para 9).
Accordingly, in view of the above observations and case laws, I deny the cross examination of panchas and investigation officers.
12. The Show Cause Notice has Prejudged the Entire Issue and Thus Prejudiced the Noticees
>I see the noticee contends that the authority who issued the SCN has already made up his mind that the gold under seizure is liable for absolute confiscation and the petitioner is liable for exemplary punishment for the alleged acts of omission and commission and has left nothing for Adjudicating authority to decide. In this regard:
i)I have gone through the averments of the noticees, taking objection to the manner of concluding the things. On a note of legal appreciation of the manner of presentation of the SCN, I find that selection of phrases under SCN have no overarching effect on the facts of the case; the facts still remain the same and in no manner can influence the adjudicating authority. What looks pre-determined to the noticees is not the same for me. To me the material facts are important and I base my views on the material facts recorded under due procedure.
ii)Whatever be the manner of presentation of the SCN, it doesn’t stop me perusing the documents on record, statutory provisions and accordingly using my discretionary powers vested as an adjudging officer.
iii) To the Noticees, what looks an interference with the discretionary power of adjudicating authority, gives me another chance to get back to the facts and circumstances and form my views also based on the submissions of the noticees made after issuance of SCN. Accordingly, I do not find SCN to be infested with the lacunae pointed out by the noticees.
iv) If the noticees are still of the view that entire issue is pre-decided by the Investigation, they should also refer to a number of precedent case laws, where the Courts are of the view that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree.
v) I also find ‘Collector of Customs, Madras And … vs D. Bhoormul on 3 April, 1974’ relevant wherein, it was held that: “The propriety and legality of the Collector’s order is to be judged in the light of the principles regarding the burden of proof. Legal proof is not necessarily a perfect proof, often it is nothing more than a prudent man’s estimate as to the probabilities of the case,..”
vi) Upon going through entire account of proceedings and findings of the Investigation, I find that contentions of the Noticee do not stand the legal scrutiny.
13. Investigation Done in Unfair Manner Only to Target Few
I see that the noticees of this SCN has the contention about investigation of a single case of alleged smuggling with common facts on the same evidence in the same acts or transactions cannot be bifurcated against a particular accused for the purpose of further investigation and separate adjudication proceedings.
> In this regard, I do not find the manner of Investigation having elements of biases towards the instant Noticees. Instead, I find two of their accomplices Mr. Dildar Singh and Mr. Naren Singh defying the summons so that the instant noticees could get some relaxation besides saving themselves from clutches of law. So far as the separate proceedings for persons other than Noticees is concerned, the investigation doesn’t seem to be barred by law and the same has been indicated under SCN too and I do not see any legal impediments before the Investigation as such.
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