Page 223 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] IN RE : MANOJ KUMAR SHARMA 757

(2) This section shall apply to gold and manufactures thereof watches,
and any other class of goods which the Central Government may by notifi-
cation in the Official Gazette, specify.”
As per Section 123 of Customs Act, 1962 the burden of proof is on the PAX from
whom the impugned goods (gold bars) are recovered to substantiate the claim
that the impugned goods are not smuggled. It is observed that the PAX retracted
from his first statement dated 23-9-2012 tendered under Section 108 of Customs
Act, 1962. He again retracted from his subsequent statement tendered on 29-1-
2013. It is conferred that these delay tactics have been were adopted with an in-
tention to derail the investigation and malign the customs officers.
Reliance is placed on the judgment of Supreme Court of India in the case
of Surjeet Singh Chhabra v. U.O.I. [1997 (89) E.L.T. 646 (S.C.)] wherein the Hon’ble
Court has held as follows :-
“Evidence - Confession statement made before Customs officer though re-
tracted within six days is an admission and binding since Customs Officers
are not Police Officers - Section 108 of the Customs Act and FERA.”
“Natural Justice - Seized goods - Cross-examination of witnesses regarding the
place at which recovery was made to be allowed but where Petitioner has
confessed, non-allowing of cross-examination is not violative of principles
of natural justice even if such confession was retracted within six days -
Customs Officers are not Police Officers hence confession though retracted
is binding - Sections 108 and 111 of the Customs Act, and FERA.”
Therefore the statement recorded under Section 108 of the Customs Act, 1962 is
admissible, even when it is retracted as per the aforesaid judgment of Apex
Court. This judgment has been relied upon by the adjudicating authority while
denying the request for cross-examination to the PAX.
9. No new facts have been brought forth by the PAX before the Gov-
ernment while reiterating his request for cross-examination of the concerned per-
sons and that too subsequently after the personal hearing was held on 22-11-2019
before this authority.
No useful purpose will be served by allowing cross-examination at this
stage when the same has already been considered and denied by both the lower
authorities, i.e., adjudicating authority as well as Commissioner (Appeals).
Therefore the Government disallows the request for cross-examination of
the concerned persons in light of the aforesaid judgment of the Supreme Court.
10. So far as the PAX’s contention regarding his eligibility under Noti-
fication No. 12/2012-Customs, dated 17-3-2012 is concerned, a passenger return-
ing to India after six months can bring gold up to 1 kg in the form of bars provid-
ed he duly informs the customs authorities at the airport and pays the duty leviable
thereon under the said notification, which is not the case here. The PAX brought 8
kgs gold, eight times the quantity permitted under Notification No. 12/2012-
Customs, dated 17-3-2012.
The plea of the PAX that he was eligible to carry 10 kg of gold wherein
he was carrying only 8 kg gold as per Condition No. 35 of Notification No.
12/2012- Customs, dated 17-3-2012 is incorrect, since the benefit of Notification
No. 12/2012-Customs, dated 17-3-2012 is not available to the PAX.
EXCISE LAW TIMES  1st June 2020  223