ORDER
Jyoti Balasundaram, Member (J)
1. The above appeals arise out of the order of the Collector of Customs confiscating absolutely 290 gold biscuits bearing foreign markings valuated at over Rs. 79 lakhs seized in November, 1986 from Mr. Prakash Chand, Mr. Ashok Thakkar and Mr. Vinod Kumar Sharma and Indian currency amounting to Rs. 3,88,718/- and imposing penalties on several persons including the appellant herein.
2. The facts of the case are as follows :
On 21-11-1986, the DRI officers acting on prior information recovered 100 gold biscuits of 10 tolas each bearing foreign markings from the person of one Mr. Prakash Chand from a room in Mewa Hotel, Chandni Chowk and also recovered Indian currency of Rs. 1600/-. On the same date, at the instance of one Mr. Naresh Kumar Sharma, 10 gold biscuits bearing foreign markings and Rs. 14,750/- were recovered from Shop No. 1190, Kucha Mahajani, Chandni Chowk, Delhi. On the same date, there was a further recovery of 100 gold biscuits of 10 tolas each from one Mr. Ashok Thakkar who was noticed moving about in a suspicious manner near the business premises of the appellant. Interrogation of one Sh. Vinod Kumar Sharma led to further recovery of 80 gold biscuits from Room No. 243, Mewa Hotel, Chandni Chowk.
3. Statements of these persons were recorded in which they named the appellant as the person to whom they were giving the gold biscuits for sale. The search of residential premises of the appellant at D-9/3, Model Town did not result in recovery of anything incriminating. The premises at C-21, Second Floor, Model Town was searched on the basis of the information available that the appellant was likely to utilise these premises to store contraband and sale proceeds of smuggled goods etc. As a result of the search conducted in the presence of Mrs. Sunita Verma, daughter of the appellant herein, Indian currency of Rs. 3,11,768/-, Silver coins, Gold ginnies, jewellery and documents were recovered and seized. However, the gold ginnies and silver were released to Mrs. Sunita Verma. Statement of Mrs. Sunita Verma was recorded on the same date in which she said that her father had taken her suddently to C-21, Model Town which belonged to her distant relation and that her father had given a brief case which contained currency which were seized by the Department. The business premises of the appellant were searched yielding Rs. 60,600/- Indian currency.
4. Show cause notices were issued to the persons from whom the gold biscuits were recovered and seized and also to the appellant and Mrs. Sunita Verma and on the basis of the statements of Mrs. Sunita Verma, Sh. Prakash Chand, Sh. Ashok Thakkar, Sh. Naresh Kumar Sharma and Sh. Vinod Kumar Sharma, the gold was absolutely confiscated. Indian currency seized from C-21, Model Town and from the business premises of the appellant was confiscated as representing sale proceeds of smuggled gold and a penalty of Rs. 5 lakhs under the Customs Act and Rs. 3 lakhs under the Gold (Control) Act was imposed on the appellant. Hence these appeals.
5. Shri B.B. Gujral, learned advocate submits that there is no connection between the appellant and the seized gold biscuits and denies that the currency recovered is the sale proceeds of smuggled gold. He submits that out of the money recovered, Rs. 12,768/- has been claimed by his daughter Mrs. Sunita Verma and Rs. 60,600/- is duly accounted for in the books in his business premises. Regarding the balance, he states that this amount was entrusted to him a date prior to the raid by one Sh. Madan Lal and one Sh. Bir Singh who had given the money for purchase of a combine harvester at Delhi. He submits that the cross examination of the persons from whom the gold was seized and who implicated him in their statements, though repeatedly requested at the stage of reply to the show cause notice and subsequently by letter dated 29th October, 1991 and in the written submissions filed, having not been offered the case of the department against the appellant falls to the ground, as it is based entirely on such statements. He also highlights the fact that even though the appellant was available, he was not called upon to tender his statement. The statement of Mrs. Sunita Verma that she was shifted suddenly to C-21, Model Town by her father and that she did not know why this was done, may give room for suspicion against the appellant but cannot be a substitute for proof that the appellant had given her the money and shifted her so as to prevent recovery of sale proceeds of smuggled gold. He submits that even from the statements recorded from Sh. Prakash Chand, Sh. Ashok Thakkar etc., what has been brought out is an alleged connection between them and the appellant in past dealings in smuggled gold and there is nothing in those statements to link the appellant with the Indian currency recovered in this case. In the above circumstances, he contends that the burden of proof upon the Department under Section 121 of the Customs Act has not been discharged. He therefore, prays for setting aside the order of confiscation of currency and penalties.
6. In reply, Shri K.N. Gupta, learned SDR draws our attention to the statements of Sh. Prakash Chand, Sh. Ashok Thakkar and Sh. Vinod Kumar Sharma, which clearly link the appellant with the offence. He relies heavily upon the statement of Mrs. Sunita Verma to establish that she was shifted from her father’s house by her father in order to escape recovery of the currency which the appellant had obtained as a result of disposal of smuggled gold by him or through him. He further submits that Mrs. Sunita Verma did not claim any money out of the seized currency at the initial stage but only claimed jewellery, silver coins and gold ginnies which were released to her on the spot. It is only subsequently that she claimed Rs. 12,768/- out of the seized amount as belonging to her. The claims of Shri Madanlal and Shri Bir Singh, being belated ones, have been rightly rejected as an afterthought by the Adjudicating authority.
7. Regarding cross-examination of co-noticees, he submits that right to cross-examine is not an essential and integral part of adjudicating proceedings before a quasi-judicial authority. He therefore, supports the confiscation of currency and imposition of penalties.
8. We find that the case of the Department rests entirely upon the statements of co-noticees, namely Shri Prakash Chand, Shri Ashok Thakkar, Sh. Vinod Kumar Sharma and Smt. Sunita Verma. Shri Prakash Chand in his statement dated 21-11-1986, 22-11-1986 and 23-11-1986 has stated as under –
“That about 2 1/2 – 3 years back, he met Sh. Jai Narain Verma in Bombay when Jai Narain Verma told him that there was a substantial difference in the prices of gold at Bombay and Delhi and it would be profitable for Sh. Prakash Chand to bring gold from Bombay to Delhi. Accordingly, he procured 20 foreign marked gold biscuits and brought it to Delhi and delivered to Sh. Jai Narain Verma in Delhi. After this, he brought foreign marked gold biscuits from Bombay on 6 more occasions and delivered it to Sh. Jai Narain Verma in Delhi. The total number of gold biscuits which he delivered to Sh. Jai Narain Verma on these occasions was 240.
He also stated that he came into contact with Sh. Vinod Kumar Sharma who was working with Shri Jai Narain Verma, that in July, 1986 Shri Vinod Kumar Sharma contacted him at Bombay and told him that he wanted to deal in gold. Shri Prakash Chand stated that he was dealing in fabrics since 1982. In the cause of this business he met one Sh. Iqbal who was having a cloth shop in Manish Market, Bombay, that about 4 months ago Shri Iqbal stopped his cloth business and opened travel agency by the name of Shan Travels at Themkar Mohalla, Mohd. Ali Road, Bombay, that in June 1986, Shri Iqbal asked him to sell his gold at a place where the prices of gold are higher than at Bombay in return for a commission of Rs. 100 per biscuit, that a common friend introduced Sh. Ashok Thakkar to Prakash Chand in January, 1985. That Shri Prakash Chand got Shri Ashok Thakkar employed with his brother in Indore, that in July, 1986, Shri Prakash Chand called Shri Ashok Thakkar from Indore to stay in Bombay, that he (Prakash Chand) sent gold biscuits with foreign markings on 5 occasions, twice in the month of July, once in the month of August and twice in the month of September, (32 gold biscuits each time) through Shri Ashok Thakkar to Shri Jai Narain Verma of Delhi, that Prakash Chand gave Ashok Thakkar a pair of Chappals having specially made cavities for concealing gold biscuits and each time Shri Ashok Thakkar brought gold biscuits from Bombay to Delhi by concealing the same in the chappals, that Prakash Chand introduced Shri Ashok Thakkar to Shri Vinod Kumar in Bombay, that in the first week of November, 1986, he asked Shri Ashok Thakkar to pick up 54 gold biscuits with foreign markings from Shri Jayender Soni in Ahmedabad for further delivery to Shri Vinod Kumar Sharma, that under his directions Jayendra Soni also sent one person with Shri Ashok Thakkar; that Shri Ashok Thakkar and the said person delivered 34 gold biscuits to Shri Vinod; that on 10th November, 1986, he brought 100 gold biscuits of foreign markings from Bombay to Delhi and delivered the same to Shri Vinod in Mewa Hotel, Delhi, that on 18th November, 1986, he got delivered 100 foreign marked gold biscuits to Shri Vinod Kumar Sharma through Iqbal. He further stated that on 19-11-1986, Shri Vinod contacted him on telephone and asked for the goods to which he (Prakash Chand) replied that he will send 200; that he then contacted Iqbal Bhai and told him that he has made a deal for 200 gold biscuits with Delhi party; that Iqbal Bhai said that he has got 300 biscuits and asked Prakash Chand to dispose of all the biscuits; that he (Prakash Chand) then contacted Shri Jai Narain Verma and asked him if he can dispose of 100 biscuits to which Shri Jai Narain Verma replied in the affirmative; that he agreed to send the goods to Jai Narain Verma; that on 20-11-1986, he got collected 3 cotton jackets each containing 100 foreign marked biscuits from one Kader through Ashok Thakkar who brought them to his (Prakash Chand) residence; that he had introduced Ashok Thakkar to Kader Khan who was Iqbal’s man at Shan Travels in July, 1986; that Ashok Thakkar and Prakash Chand arranged the 300 gold biscuits in 2 jackets of 150 biscuits each; that on 20-11-1986, he (Prakash Chand) and Ashok Thakkar took Rajdhani Train for Delhi with one jacket of 150 biscuits each; that on 21-11-1986 after reaching Delhi, Ashok Thakkar and he went to India Hotel where Shri Ashok Thakkar checked in; that in the India Hotel room, he took 50 foreign marked gold biscuits from Shri Ashok Thakkar’s jacket and put the same in his (Prakash Chand’s) jacket and he then rang up Vinod Kumar from Hotel reception and asked him to come to the Mewa Hotel room; that he (Prakash Chand) then went to Mewa Hotel, delivered 100 foreign marked gold biscuits to Vinod Kumar Sharma in room No. 243; that Vinod Kumar gave some of the biscuits in packet to one boy standing outside the room in the corridor and concealed the remaining biscuits in a steel tiffin carrier which Vinod kept under the table; that he (Prakash Chand) and Sh. Vinod Kumar Sharma while coming out of hotel were intercepted by the DRI Officers and personal search of Prakash Chand resulted in the recovery and seizure of 100 foreign marked gold biscuits and one cotton jacket used for concealing the gold biscuits, he (Prakash Chand) further stated that a pair of chappals were shown to him by the DRI Officers on 23-11-1986 which he identified to be the same which he had given to Sh. Ashok Thakkar and in token of this he had signed the chappals.”
Shri Ashok Thakkar corroborates the statement of Sh. Prakash Chand in all material particulars.
Shri V.K. Sharma in his statements dated 21-11-1986, 22-11-1986, and 23-11-1986 recorded under Section 108 of the Customs Act, 1962 stated that he was working with Jai Narain Verma from early 1982 to April, 1986. During the course of his employment under Jai Narain Verma he met Prakash Chand who used to bring smuggled gold for Jai Narain. He also stated that under the directions of Jai Narain he used to deliver gold biscuits to Shantlal, Harnath, Mahabir, Kedrra, Rakesh, Bhola sons of Karolbagh, Ashwani, Rohtash and Ram Chander. In April, he left working with Jai Narain and started business of smuggled gold on his own. He stayed in Bhiwani for about one month after he left Jai Narain. He contacted Prakash Chand two three times on telephone from Bhiwani and Prakash Chand told him to wait. On 3rd November, 1986, Prakash Chand sent 54 smuggled biscuits through Ashok Thakkar to him and the same were delivered to him on 4th November, 1986. On 10-11-1986, he received 100 gold biscuits from Prakash Chand in Mewa Hotel. On 18-11-1986, Prakash Chand arranged 100 gold biscuits for him from some Delhi party and he sold this 100 gold biscuits to Ram Chander in Chandni Chowk. On 21-11-1986, he received 100 gold biscuits from Prakash Chand in room No. 243 of Mewa Hotel out of which he gave 20 biscuits to his brother Naresh Kumar for further delivery to one Om Prakash and kept the remaining 80 biscuits in a steel tiffin carrier. While coming out of the Hotel, Prakash Chand and Vinod Kumar were intercepted by the DRI Officers. Later he (Vinod) was summoned to DRI Office and before the Officers, he stated that 80 more smuggled gold biscuits which he had purchased from Prakash Chand, were lying concealed in a tiffin carrier in room No. 243 in Mewa Hotel. The officers then went with him to Mewa Hotel and his hotel room No. 243 was searched as a result of which the officers recovered and seized 80 foreign marked i gold biscuits from the steel tiffin carrier.
9. The statement of Shri N.K. Sharma is to the effect that on 21-11-1986, his brother Shri V.K. Sharma gave him a bag wrapped with cloth outside Room No. 243, Mewa Hotel with instructions to deliver it at the shop of Shri Om , Prakash and also to tell Sh. Om Prakash that it contained 20 gold biscuits; Om Prakash took delivery of the bag around 11.30 AM; After delivery of bag,, he came back to Mewa Hotel where he was intercepted by the DRI officers and he accompanied the officers to the shop where he had delivered the bag and since the owner of the shop was not present, door of the shop was broken open and 10 gold biscuits bearing foreign markings and some Indian currency were recovered by the DRI Officers.
10. Smt. Sunita Verma daughter of the appellant, stated that on 21-11- 1986, her father took her to C-21, Model Town-III which belongs to her distant relation. She was in possession of a bag consisting of Indian currency of Rs. 2.99 lakhs, silver coins, gold ginnies and silver ornaments besides some documents which were given to her by her father. She stated that she did not know as to why her father had shifted her alongwith the bag consisting of Indian Currency and gold and silver ornaments and that the goods seized by the DRI Officers on 21-11-1986 from C-21, Model Town were those given to her by her father. We agree with the learned Counsel that in the facts and circumstances of this case, which is entirely based upon the statements of co-noticees, the opportunity of cross-examination should have been extended to the appellants. We find that the adjudicating authority has not adduced any reason for disallowing the cross-examination of co-noticees which was all the more necessary in view of the contention before him that the statements of Sh. V.K. Sharma and Sh. Naresh Kumar were recorded under duress.
11 In the case of Kallatra Mahin v. Collector of Central Excise [1984 (16) E.L.T. 622], the Tribunal has held that though the testimony of an accomplice may be treated as a substantive evidence under Section 3 of the Evidence Act, it is very weak and tainted evidence and it requires corroboration in material particulars. The Tribunal relied upon the decision of the Hon’ble Supreme Court reported in AIR 1964 SC 1184 (Hari Charan Kurmi v. State of Bihar) in coming to its conclusion. We further find that there is no reason for not recording the statement of the appellant himself and it is not the case of the department that he was not available for the purpose or was evading any summons issued for the purpose.
12. We therefore, see great force in the contention of the learned Counsel for the appellant that the burden of proof upon the department under Section 121 has not been discharged. The case law cited by the learned SDR is distinguishable on facts. In the case of Pran Nath Dhawan v. Union of India [1984 (17) E.L.T. 12 (Del.)], the Hon’ble Delhi High Court held that a retracted statement is not determinative of its involuntary character and only one of the factors to be considered alongwith other factors in determining the question whether a statement was voluntary or not, while in the appeal before us, the evidence before the department consists only the statements of co-noticees some of which are stated to have been retracted and there is no other independent corroboration.
13. In the case of K. Balan v. Government of India [1982 (10) E.L.T. 386], the Hon’ble Madras High Court allowed the Writ petition on the ground that the impugned order of the Government did not contain any reasons whatsoever for determining the findings of the Central Board of Excise that the accounts referred to belonged to the petitioners’ factory and in para 8 of the judgment, the learned Single Judge has opined that it was not necessary for him to express any opinion on the question whether the Collector was or not justified in acting upon the statements of one Shri Sethuraman and Shri Sundarakumar who were not made available for cross-examination in spite of the specific request therefor.
14. In the case of Indru Ram Chand Bharvani v. Union of India reported in [1988 (38) E.L.T. 459], the Hon’ble Delhi High Court held that the non-calling of the deponents of affidavit for cross-examination did not amount to denial of opportunity to the petitioners as the petitioners were not refused any opportunity to cross-examine any witness nor was it their case that the deponents of the affidavit were not permitted to file any documents or place any additional material before the Collector.
15. The possession of currency and unsatisfactory explanation with reference to the acquisition of the same may create a suspicion in the mind of the authority, but suspicion is not a proof to hold that the amount represented the sale proceeds of smuggled goods. See [1988 (33) E.L.T. 444
16. We accept the plea of the appellant that the department has not discharged the burden of proof in the present case, extend the benefit of doubt to the appellant and set aside the impugned order and allow the appeals with consequential relief, if any, due.
Sd/-
(Jyoti Balasundaram)
Member (J)
S.K. Bhatnagar, Vice President
16. With due respect to Hon’ble Member (Judicial) my views and orders in this matter are as follows :-
I observe that Ld. DR Shri Gupta’s arguments with reference to the statements of Shri Prakash Chand, Shri Ashok Thakkar and Smt. Sunita Verma as also the circumstantial evidences, have a lot of force
17. I also observe that Ld. Collector has also relied, inter alia, mainly on the above position. However, the order of the Collector shows that cross-examination of some persons was allowed and notes that Counsel for Shri Jai Narain Verma did not want to cross-examine Shri Banarsi Das. He however, cross-examined Shri Madan Lal (a defence witness). It is however, not clear whether cross-examination of Shri Prakash Chand, Ashok Thakkar, Vinod Kumar Sharma and Smt. Sunita Verma was specifically requested and if so, whether it was disallowed. At the same time, we note that during the course of hearing before us the point has been raised by Ld. Counsel that cross-examination of four noticees was not allowed and no reason was given for the same. Since the Collector’s orders are not clear on this aspect, but are, inter alia, mainly based… (sic) as noted above, on the statements of Shri Prakash Chand, Shri Vinod Kumar, Ashok Thakkar and Smt. Sunita Verma, I consider that principle of natural justice has not been duly observed. Therefore, I set aside the impugned order but remand the matter to the Collector with the direction that he should duly observe the principles of natural justice and allow the cross-examination of the persons specifically requested and pass appropriate orders after granting hearing to the appellants.
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(S.K. Bhatnagar)
Vice President
18. In view of the difference of opinion between the Hon’ble Member (J) and the Vice President, the matter is submitted to the President for reference to a third Member on the following point :-
“Whether in the facts and circumstances of the case, the appeal may be allowed with consequential relief or the matter may be remanded to the Collector for de novo consideration in accordance with the principle of natural justice.”
Sd/- Sd/-
Jyoti Balasundaram S.K. Bhatnagar
Dated : 24-2-1994 Member (J) Vice President
DIFFERENCE OF OPINION
G.R. Sharma
19. This matter has been referred to me as a difference of opinion. The issue to be decided is :
"Whether in the facts and circumstances of the case, the appeal may be allowed with consequential relief or the matter may be remanded to the Collector for de novo consideration in accordance with the principle of natural justice."
20. Shri B.B. Gujral, the ld. Advocate appearing for the appellant reiterated most of the pleas put forth by him at the time of hearing of appeal. He submitted that even if cross-examination of the persons is allowed, the fact still remains that the evidence of co-noticees will be treated as tainted evidence. Emphasising the fact that only Indian currency was seized from the appellant and the Department had miserably failed to prove that the seized currency was sale proceeds of smuggled gold. Therefore, the currency should be released to him. In support of his contention, he cited the judgment in the case of Rantachandra v. Collector of Customs reported in 1992 (60) E.L.T. 277 (Tri.) wherein the Tribunal had held :-
“Since the charge under Section 121 of the Customs Act has not been proved against the appellant the currency notes cannot be retained by the Department and have to be returned to the appellant. Imposition of penalty was also not legal and proper in the absence of proof of violation of any provisions of the Customs Act.”
The appellant also cited and relied upon the decision of the Tribunal in the case of Smt. Malar v. Collector of Customs & Central Excise reported in 1988 (33) E.L.T. 444 (Tri.) In this case the Tribunal had held :-
“We have carefully gone through the entire case records. We should confess, we do not find an iota of evidence against the appellant to hold that the currency of Rs. 55,050/- seized from her represented the sale proceeds of contraband goods. We also do not find any material on record to show that the Customs authorities either entertained a reasonable belief or could have had reasonable belief to effect seizure of the same in terms of Section 110 of the Act. The mere possession of currency and an unsatisfactory explanation with reference to acquisition of the same may possibly engender suspicion in the mind of an authority. But suspicion however grave it might be, cannot take the place of proof. In this view of the matter, we set aside the impugned order appealed against and allow the appeal”.
The appellant also cited and relied on the decision of the Tribunal in the case of Srikant Haldar and Anr. v. Collector of Customs reported in 1991 (53) ELT 425. In this case the Tribunal had held :-
“Seizure of currency not sustainable as Department has not discharged the onus to prove that the currency is sale proceeds of smuggled goods.”
It was also argued that the appellant had produced ample evidence in accounting for the confiscated currency but the Department on extraneous grounds without bringing in any cogent evidence rejected the claim of the appellant to the currency; that no contraband goods was recovered from his residence or from his shop and, therefore there cannot be even the remotest charge that the Indian currency recovered from his residence and the business premises was sale proceeds of smuggled gold. Summing up his arguments on the confiscation of Indian currency, the 1d. Counsel submitted that simply because some people alluded that the appellant was indulging in smuggling of gold or dealing in smuggled gold cannot be conclusive proof that Indian currency recovered from the appellant’s residential and business premises were the sale proceeds of smuggled gold. Arguing further, the 1d. Counsel submitted that the appellant’s statement was never recorded and, therefore, penalising the appellant on the basis of the statement of co-noticees is neither legal nor justified. In support of his contention, that the evidence of the co-accused is a tainted evidence and cannot be accepted as such unless corroborated independently, the 1d. Counsel for the appellant cited and relied upon the judgment reported in 1994 (69) E.L.T. 212, 1992 (58) E.L.T. 192. On the question of imposition of penalty the 1d. Counsel submitted that it is a settled law that before a person could be visited with penal consequences under Section 112 of the Customs Act, there should be acceptable legal evidence on record about the acts of commission or omission by the person concerned. In support of his contention the 1d. Counsel cited and relied upon the case law reported in 1985 (5) ECC 46, 1987 (27) E.L.T. 734,1993 (63) E.L.T. 237. It was pleaded by the 1d. Counsel that it is a very accepted principle of natural justice that to give credence to any evidence or guage its probative value or other piece of evidence which is in dispute, the opportunity of cross-examination should be provided. He cited and relied upon the judgment reported in AIR 1977 1627, AIR 1962 108, AIR 1961 48, AIR 1967 203, 1982 (10) E.L.T. 333, 1988 (37) E.L.T. 515, and 1984 (16) E.L.T. 257. The 1d. Counsel therefore submitted that the impugned order may be set aside and the appeal may be allowed as has been held by the Member (J).
21. Shri K.N. Gupta, the 1d. SDR appearing for the Revenue submitted that it is a fact that there is no finding of the Collector in the order passed by him as to why cross-examination of the persons whose statement was relied upon and on the sole basis for implicating the appellant were not allowed to be cross-examined. He submitted that the appellant had figured in few cases as has been brought out in the Order-in-Original which clearly proved that the appellant was indulging in dealing in smuggled gold and, therefore the confiscation of the seized Indian currency was justified so also can be said of the penalty.
22. Shri Gupta also dealt with the larger issue of an inculpatory and confessional statement which was subsequently retracted and submitted that any inculpatory statement is to be examined in the light of the entire evidence available; that retraction if belated cannot be termed as retraction and that quasi-judicial authorities can go into the reasons for ascertaining whether reasons for retractions are plausible and tenable. He, however, submitted that in case it is held that there was denial of natural justice and non-observance of the principles of natural justice, he may agree to the remand of the case for de novo adjudication.
23. On careful consideration of the submissions made by both the parties before me, I find that there is no indication in the Order-in-Original whether cross-examination of Shri Prakash Chand, Shri Ashok Thakkar, Vinod Kumar and Smt. Sunita Verma was specifically requested and if so, whether it was disallowed, however, from the impugned order, I find that the Collector had held :-
“I find that no evidence such as medical certificates (to substantiate claims of torture and beating) or otherwise have been produced by any one of the above namely, S/Shri Vinod Kr. Sharma, and Naresh kumar to prove their point or show that any such retractions made in the Court, when these persons were produced before the Magistrate. I find that facts in these statements corroborated whichever and the fact that foreign marked gold was recovered as was currency further substantiate their veracity. It will also be pertinent to point out that one of the noticees (Jai Narayan Verma ) was implicated in other foreign marked gold seizure case (seized from residential premises) on 5-11-1989. The said case has already been decided vide adjudication No. 37/92 dated 30-9-1992. The weight of evidence is therefore, on the side of Department and the noticees have not been able to successfully prove that the statement made under Section 108 as above was not voluntary. I, therefore, hold that the above statements have been made voluntarily and depict the trite facts and circumstances in this case.”
This finding of the Collector clearly shows that Collector did not accept that the statements of the accused recorded under Section 108 of the Customs Act were involuntary or untrue or were taken under duress and, therefore, it appears he did not consider it necessary to allow cross-examination of the co-noticees. Further, even if the cross-examination of the co-noticees is permitted on observance of the principles of natural justice as held by the Hon’ble Vice President, the fact remains that, that evidence of the co-noticees will remain a tainted evidence and in the absence of independent corroborative evidence, the position will remain the same. Having regard to the facts and circumstances of the case I am inclined to agree with the order proposed by the 1d. Member (J).
24. The file may now be sent to the original Bench for issuing final order.
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G.R. Sharma
Dated: 5-7-1994 Member(T)
FINAL ORDER
In view of the majority opinion the appeal is allowed with consequential relief.
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(Jyoti Balasundaram) (S.K. Bhatnagar)
Dated : 28-7-1994 Member (J) Vice President.