SH. ASHOK KUMAR Vs. CC, NEW DELHI

JUDGEMENT

(1.) This appeal is against the order of the Commissioner (i) absolutely confiscating certain number of foreign origin gold bars (found to have been smuggled into India) under Section 111 (d) of the Customs Act and foreign currency (US and French franc) (found to be sale proceeds of smuggled goods) under Section 121 of the Act, (ii) confiscating a car (found to have been used for carrying the gold) with option for redemption on payment of a fine for Rs.5 lakhs, and (iii) imposing a personal penalty of Rs.5 lakhs under Section 112 (b) of the Act. The main ground of challenge in this appeal against the order of the Commissioner is that the appellant's Counsel was not given opportunity for cross -examining the Panch witnesses or for arguing the case.

(2.) Carefully examined the record and heard both sides.

(3.) The Commissioner has noted in her order to the effect that Id. Advocate, Sh. Akshay Anand was personally heard. The same Advocate represents the appellants before me today and submits that he was, in fact, not so heard, nor was he given any opportunity for cross -examining the Panch witnesses. He submits that the seizing officer and the officer who recorded statements under Section 108 of the Customs Act were cross -examined by him on 30.9.99 and the matter was posted for cross -examination of the remaining witnesses (Panch witnesses), and there after he was awaiting notice in that behalf from the Commissioner. However, ltd. Advocate submits, the Commissioner straightaway passed the impugned order without posting the case for cross -examination of the Panch witnesses, let alone personal hearing. Nevertheless, the Commissioner has, in her order, claimed to have heard the advocate's arguments. Having regard to these contradictory positions, ltd. Advocate submits that he has already filed affidavit affirming that neither any opportunity of cross -examination of the Panch witnesses nor any opportunity of being heard was given by the Commissioner before passing the impugned order . I have noted the previous proceedings of the Bench and have found that an opportunity was given to the Advocate for filing such an affidavit but no such affidavit is forthcoming from the records. At this point of time, ltd. Advocate asserts that the affidavit was filed on 8.8.2000. On the other hand, the Registry has reported that no such affidavit has been filed. This position is contested by ltd. a Advocate by producing his copy of the affidavit with index. I find that this document carries the CEGAT seal dated 8.8.2000 as well as the seal dated 8.8.2000 of he office of the CDR. This document, prima facie, shows that the original affidavit had been filed by the Counsel on 8.8.2000 and a copy there of had been served on the DR. on the same date.