The Chandigarh bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that a statement made before the Customs officials that was not recorded under Section 161 of the Criminal Procedure Code, 1973, and such statement of co-accused can be used as a substantive evidence.
Narayan Sharma, the appellant assessee appealed against the order passed by the Commissioner (Appeals) for confirming the absolute confiscation of goldunder sections 111(d), 111(1), and 111(m) of the Customs Act, 1962 and imposition of penalty and for the Customs Duty demand under section 28AA of the Customs Act on the assessee.
Naveen Bindal and Dilpreet Singh Gandhi, the counsels for the assessee contended that the demand of duty and penalty on the assessee was only based upon his statement given under Section 108 of the Customs Act but the statement had not been read as a whole and relied upon and read in piecemeal.
Also submitted that the statement against the assessee cannot be used without giving them the opportunity of cross examination and no cross examination of the assessee was granted to him therefore his statement cannot be relied upon to impose penalty and further the penalty imposed on him was on the higher side which was not justified.
Swati Chopra, the counsel for the department relied on the decisions made by the lower authorities and contended that the the statements of other assessee were recorded under Section 108 of the Customs Act wherein they had partly admitted the smuggling of gold.
The Bench observed that in the case of Naresh J. Sukhawani vs. Union of India, the court held that the statement made before the Customs officials were not recorded under Section 161 of the Criminal Procedure Code can be used as substantive evidence.
A single-member bench comprising S.S Garg( Judicial) upheld the absolute confiscation of smuggling of gold bars by the assessee.
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