made by him. Therefore, reliance on the statements of other persons to implicate Shri Somnath Chaudhary, without following the due procedure prescribed under law and Section 138B, is legally unsustainable. Further, the reliance placed on the letters of the Angadiya during the course of investigation is also misplaced. Such letters were merely furnished in response to queries raised by the Department and were not obtained by summoning the person or records in accordance with law. These documents have neither been recorded under Section 108 nor tested for their evidentiary value. There is nothing on record to show whether the entries referred to therein were maintained in the regular course of business so as to be admissible in evidence. Moreover, these documents were not provided to the appellant for effective rebuttal nor was any opportunity granted to examine or comment upon the same. It is also pertinent that the alleged payments from the socalled smugglers to the appellant have been treated as relevant without any proper evidentiary foundation. The persons making such statements ought to have been examined under Section 108 and offered for cross-examination. Instead, the Department has merely relied upon unverified letters, without establishing whether the same are based on properly maintained books of account. Such material, therefore, cannot be treated as reliable evidence, particularly when cross-examination of the concerned persons has been denied to the appellant. Additionally, no identification of the appellant has been carried out by the accused persons or passengers. Significantly, for the initial period of 3–4 days, none of the persons named the appellant and only made vague references such as “some Chaudhary”. Subsequently, his name was introduced in statements without any proper investigation, including identification through personal appearance, photographs, or otherwise. It is further noted that entities such as M/s. Purnima Angadiya Services and Vishnubhai Kantilal Angadiya, who are alleged to have handled the Angadiya slips and transactions, have not even been issued show cause notices despite their purported involvement in handling payments relating to contraband goods. The denial of cross-examination of such crucial witnesses has caused serious prejudice to the appellant. In view of the above, such statements and documents ought not to have been relied upon. Alternatively, the persons giving such statements should have been subjected to cross-examination, particularly in light of the legal position emerging from the judicial precedents discussed hereinabove and the mandatory requirements of Section 138B, which are equally applicable to adjudication proceedings.
