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xx EXCISE LAW TIMES [ Vol. 372
Personal hearing - Ex parte order without grant of personal hearing not
sustainable - See under ADJUDICATION ..................... 828
Precedent - It is not open for the High Court to declare a judgment passed
by Supreme Court of India as per incuriam — Sandeep Patil v. Union of India
(Bom.) ......................................... 794
— Scope of - Case law built on shifting stands of jurisdiction, accepted by
consent - It is not comparable with one that case having jurisdictional
competence which was contested and argued by rival sides — S.
Muthusamy v. Addl. Director General (Adj.), D.R.I., Mumbai (Tri. - Mumbai) ......... 849
— Scope of - Decision which did not examine legal aspect at root of
jurisdiction - It is no precedent for contending that a subsequent decision,
which did, is bad law — S. Muthusamy v. Addl. Director General (Adj.), D.R.I.,
Mumbai (Tri. - Mumbai) ................................. 849
Presumption of innocence is in favour of accused - See under
PROSECUTION ................................... 817
Proportionate Cenvat credit on inputs/input services used in exempted
goods reversed, demand under Rule 6(3A)(i) of CCR not sustainable - See
under CENVAT CREDIT .............................. 867
Prosecution - Gold smuggling, lack of evidence - Illegal search - Acquittal of
accused, sustainability - No evidence adduced by Revenue to establish
that accused was in any way instrumental in illegal import of gold or had
knowledge that gold recovered from his possession/residence was liable
for confiscation - Seizure itself was illegal having not been carried out in
terms of statutory provision of Section 102 of Customs Act, 1962
inasmuch as accused was never asked as to whether he wished to be
taken before a Magistrate or a Gazetted Officer of Customs for causing
his search in their presence - Settled in catena of decisions under
aforesaid provision and under similar provision of Section 50 of Narcotic
Drugs and Psychotropic Substances Act, 1985 that it is right of accused to
be asked of this question and if accused is not informed of his right,
search itself gets vitiated - Even if search is taken in presence of Gazetted
Officer of Customs, still this question has to be asked because accused
may have more confidence in Magistrate rather than Customs officer -
Thus illegality of search itself is sufficient to acquit accused -
Notwithstanding, evidence adduced by Revenue is also not sufficient to
convict accused - There is no evidence that recovered gold was
manufactured from imported gold as there was no marking on said gold,
panch witnesses to search were not produced for examination - Mere
confessional statement without any corroborative evidence is of no help
to Revenue - Mint report submitted is also not reliable as there is no co-
relation of report with seized gold - Similarly there are many lacunas in
prosecution case of recovery of gold from residence of accused e.g. non-
production of copy of Search Warrant, non-examination of officer issuing
search warrant, witness of house search becoming hostile and Revenue
failing to establish ownership of house solely with accused - In view of
above, no illegality or impropriety in Trial Court’s order acquitting
accused - Impugned order sustainable - Section 135 of Customs Act, 1962
— Union of India v. Jasmine Jayantilal Thadeshwar (Bom.) .................. 817
— Presumption in favour of accused - Settled principle of criminal
jurisprudence that every person shall be presumed to be innocent unless
they are proved guilty by competent Court of law - In this case, having
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