Decided on November 27,1991



T.P. Nambiar, Member (J) - (1.) LEARNED Consultant, Shri K. Chatterjee, appeared for the applicant and stated that the pre-deposit of penalty of Rs. 10,000/- imposed on the applicant be waived during the pendency of this appeal. He stated that the applicant has got a prima facie case on the following grounds :- (a) The Seizing Officer who has taken the statement of the appellant under Section 108 of the Customs Act was not allowed to be cross examined in spite of request made in this behalf through the reply as well as in the proceedings; and (b) The statement given to the Seizing Officer was under compulsion and it was given on 12-5-1988 and a copy of the statement was never furnished to the applicant. It was also stated that an affidavit was made on 31-5-1988 retracting from the above statement and stating that it was obtained under compulsion. It was also stated that admittedly the goods were seized from the bed room of Shri Ramesh Chandra Gupta and the appellant was there only to give him some message and he had no connection with the foreign fabrics in question. In support of his contention that the principles of natural justice are violated, he relied on the decision of the Calcutta High Court reported in 1986 (23) E.L.T. 14. He also stated that the financial condition of the applicant is very bad.
(2.) Learned J.D.R., Shri B.B. Sarkar stated that the whole conduct of the applicant is highly suspicious and the circumstances will show that he was in the knowledge of the foreign textiles found in the house of Shri Ramesh Chandra Gupta. He stated that the applicant gave a statement to the effect that he had gone there for purchase of dust of enough quantity and the same will cost about Rs. 20,000/- whereas no amount was found in his possession. He also contended that the very fact that the applicant was found sitting in the bed room of the above said person, Shri Ramesh Chandra Gupta is a strong circumstance to show that he had the knowledge about foreign textiles which were gathered in the house of Shri Ramesh Chandra Gupta. As far as cross-examination aspect is concerned, Shri B.B. Sarkar stated that unless case records are obtained from the Department, he will not be in a position to enlighten this Tribunal about this aspect of the matter. As far as the financial condition of the applicant is concerned, Shri Sarkar stated that the said certificate given by the authorities to show the financial condition is for the year 1989 and the applicant has not placed any material to show as to what is his financial position as on today. Therefore, he stated that much reliance cannot be placed on the same. Shri Sarkar also brought to our notice that even though the affidavit was made on 31-5-1988, the same was submitted to the Collector through a letter dated 9-8-1988. On this account, he stated that the applicant has no prima facie case. We have considered the submissions of both sides. The detailed facts with reference to circumstances against the accused are to be ascertained while hearing the appeal proper. But at this juncture, the record shows that there was a demand made by the applicant to cross examine the Seizing Officer who had taken down the statement under Section 108 Cr. P.C. Such a cross-examination was not allowed and the Order does not show as to on what ground this cross-examination was denied. The Order also does not indicate about this request of applicant for cross-examination as could be seen from the reply filed by the applicant. In such circumstances, in view of the decision of the Calcutta High Court reported in 1986 (23) E.L.T. 14, the applicant appears to have a prima facie case. In the result, we grant absolute stay as prayed for and pre-deposit of the penalty during the pendency of the appeal is hereby waived. The appeal proper may be posted in due course.;

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