Gagan Karel Vs Commissioner of Customs (Preventive) (CESTAT Kolkata)
Summary: CESTAT Kolkata allowed the appeal of Gagan Karel and set aside a penalty of Rs.25 lakh imposed under Sections 112(a) and 112(b) of the Customs Act, 1962 for alleged abetment in smuggling and dealing with smuggled gold. The proceedings arose after 58 pieces of gold biscuits and bars and about half a biscuit, weighing 10.54855 kg and valued at Rs.2,85,86,569, were seized from Pawan Prasad and Monika Yadav on 16.06.2015. The case against the appellant was principally based on statements of the apprehended persons alleging that gold had been delivered to him on earlier occasions and that a portion of the seized gold was intended to be delivered to him.
The Tribunal observed that except for the statements of Pawan Prasad and Monika Yadav, there was no other evidence on record implicating the appellant. Although an opportunity to cross-examine them had been fixed for 19.12.2016, neither appeared on that date. The adjudicating authority thereafter passed the order without granting any further opportunity for their cross-examination, while relying upon their statements to impose the penalty.
CESTAT held that where statements of co-accused were the only evidence implicating another person, those statements could not be relied upon against that person without affording an opportunity to cross-examine the persons making the statements. This was particularly relevant because Pawan Prasad and Monika Yadav had participated in the adjudication proceedings. In the absence of any other corroborative evidence, their statements could not sustain the allegations against the appellant.
