Page 183 - ELT_15th August 2020_Vol 373_Part 4

2020 ] MOHAMMED ANIF v. COMMISSIONER OF CUSTOMS, MANGALORE 517

ing been passed by the Additional Commissioner of Customs under Chapter
XIV, said authority would fall within the definition of Section 2(8) and as such
order passed by the Additional Commissioner of Customs cannot be faulted or
in other words, contentions raised by Sri Dakshina Murthy, Learned Counsel
appearing for appellant cannot be accepted and it stands rejected.
9. Insofar as, merits of the case is concerned, it would clearly emerge
from the orders of the original authority as affirmed by the appellate authority
the statement of appellant recorded under Section 108 of the Customs Act penal-
ty under Section 112(a) came to be imposed. In fact, whatsapp messages ex-
changed between the noticees including the appellant herein, which formed part
and parcel of the show cause notice and adjudication order, it came to be held
that appellant herein has admitted in his statement furnished under Section 108
of the Customs Act and his role in the act of smuggling of gold or in other words,
appellant has admitted his guilt, which statement so tendered by him was before
the custom officers, who is not a police officer. A statement of an accused under
Section 108 when recorded by a Customs Officer the safeguards provided under
Section 164 Cr.P.C. is not required to be followed. It is in this background, origi-
nal authority as well as appellate authority have examined the statement.
10. In fact, appellant has not retracted his retrospective statement and it
has never been contended by the appellant that statement has been obtained
from him under threat or duress or coercion. It is only after show cause notice
was issued proposing to levy penalty, appellant has tried to retrace his steps and
not before the said date. It is for this reason appellate Tribunal has recorded the
following finding :
“6.1 Further, the contention of the Learned Counsel for the appellant
saying that the appellants were not subjected to cross-examination is not
tenable in law because the appellants never retracted their statements at
any point of time and in their original statements made before the Customs
Officer under Section 108, they have clearly admitted their involvement in
smuggling activity on payment of remuneration. The versions of the appel-
lants given before the Customs Officer were also proved from their
WhatsApp communication.”
11. In the light of aforesaid discussion, we are of the considered view
there is no substantial question of law involved in this appeal for being admitted,
adjudicated and answered. Hence, we proceed to pass the following :

Judgment
(i) Appeal is dismissed.
(ii) Order dated 6-8-2019 passed by CESTAT in Final Order No.
20620/2019 - Annexure-K [2019 (370) E.L.T. 1399 (Tri.-Bang.)]
stands affirmed.
(iii) No order as to costs.
12. In view of appeal having been dismissed, I.A. No. 1/2020 for stay
does not survive for consideration and it stands dismissed.

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EXCISE LAW TIMES  15th August 2020  183