Page 222 - ELT_1st September 2020_Vol 373_Part 5

660 EXCISE LAW TIMES [ Vol. 373

57. In K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate,
referred to supra, it was held that a conviction also can be based on the state-
ments recorded under Section 108 of the Customs Act, 1962. However, Practice
and Prudence require the Court to examine the evidence produced by the prose-
cution to find out whether any other facts and circumstances which corroborate
the retracted confessions.
58. Confirmation of demand solely based on statements recorded un-
der Section 108 of the Customs Act, 1962 would require cross-examination by the
petitioner.
59. At the same time, if such statements are merely intended for cor-
roboration of independent evidence, the cross-examination need not be allowed.
60. Therefore, it is for the 1st respondent to decide whether the state-
ments recorded are to be solely relied for confirming the proposed demand or
are relied for mere corroboration of independent evidence gathered during in-
vestigation.
61. In the case of former, mandatorily such statements would require
cross-examination and without cross-examination, confirmation of demand
would be contrary to the law settled by the Hon’ble Supreme Court in Andaman
Timber Industries v. CCE referred to supra.
62. If reliance is to be placed on any statement of any person as a wit-
ness, the 1st respondent is enjoined to issue summons and produce such persons
for cross-examination, unless of course such person is a co-accomplice of the no-
ticee or an employee of the noticee.
63. Therefore, it is for the 1st respondent to issue summons to these two
employees of CHA’s for being present for cross-examination if the 1st respond-
ent is of the view that reliance has to be placed on the statement of these persons
before passing an order in the said show cause proceeding.
64. Therefore, 1st respondent may inform the petitioner whether it
proposes to confirm the demand solely based on the statements of the persons
whose statements have been recorded under Section 108 of the Customs Act,
1962 and if that be so, produce them for cross-examination by the petitioner.
65. As far as the alleged use of threat while recording statements and
subsequent retraction is concerned, there are no records before me. Neither the
petitioner nor the respondent have filed copies of statements recorded under Sec-
tion 108 of the Customs Act, 1962. The petitioners have also not filed any copy of
letter of retraction.
66. Thus, it cannot be said that guidelines of the Hon’ble Supreme
Court in D.K. Basu v. State of MP referred to supra was violated particularly in
the light of absence of any material records/documents to substantiate that
threat or coercion was exercised on the petitioners when statements were record-
ed. As there are no documents to substantiate that the statements recorded were
retracted by the petitioners, I am unable to accede to the request of the petitioner.
67. Further, petitioners were not arrested or detained. They were mere-
ly summoned under Section 108 of the Customs Act, 1962 to record evidence and
to produce documents for making enquiry under the Act.
68. If the proprietor of the 1st petitioner or the 2nd petitioner were ar-
rested, there should have been some records to substantiate the same in which
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