2004 (4) TMI 462 - AT - Customs

Hearing - Adjournment - Adjudication - Natural justice - Show cause notice - Confiscation and penalty - Adjudication

Summary

Issues Involved:
1. Request for a different bench.
2. Violation of principles of natural justice.
3. Unauthorized importation and liability to confiscation.
4. Penalty under Section 112 of the Customs Act.

Detailed Analysis:

1. Request for a Different Bench:
The appellant's letter dated 7-1-2004 requested that the appeals be posted before another Bench. However, the appellant was informed that the case had to be heard by the duly constituted Bench as per the remand by the Hon'ble Bombay High Court. The High Court had not directed the appeals to be heard by a different Bench. The appellant sought time to engage an advocate, but it was pointed out that his counsel was still on record and that the Bench was required to dispose of the appeals at the earliest. The appellant was called upon to present his case himself or through Counsel, but he declined.

2. Violation of Principles of Natural Justice:
The appellant challenged the Collector's order on the ground of violation of principles of natural justice, stating that requests for adjournments of personal hearing for valid reasons were disregarded and that he had not been given any opportunity to cross-examine witnesses. However, the appeal did not spell out the reasons for seeking adjournments or whether and when the appellant had asked for any opportunity to cross-examine any witness. The Tribunal found that reasonable opportunity had already been given to the appellant for filing written submissions and that the appellant's plea of negation of natural justice was, therefore, rejected.

3. Unauthorized Importation and Liability to Confiscation:
The show cause notice alleged that the appellant had deliberately caused unauthorized importation of the subject goods, rendering them liable to confiscation under Section 111(d) of the Customs Act. The appellant did not reply to the notice, and the Tribunal held that the allegations against him were conceded. The Tribunal referred to the larger Bench decision in CC v. R.K. International and the Hon'ble Supreme Court's decision in Rowjee v. State of A.P., which held that adverse inference could be drawn against the noticee at the appellate stage if the show cause notice was not replied to. The Tribunal found that the oral evidence and the Collector's finding on the appellant's nexus to the goods were supported by the evidence.

4. Penalty under Section 112 of the Customs Act:
The appellant challenged the penalty imposed under Section 112 of the Customs Act for unauthorized importation of three consignments of High-Density Polyethylene (HDPE). The show cause notices alleged that the appellant had imported the goods in the name of M/s. Naresh Udyog, who did not fulfill the actual user condition for importation under OGL, with the intention to sell the goods in the market. The adjudicating authority found that the appellant was the real importer of the goods based on statements recorded under Section 108 of the Act. However, the appellant's request for cross-examination of the persons whose statements were relied on was not considered by the Collector. The Tribunal set aside the impugned order and remanded the case for fresh adjudication, directing the Commissioner to consider the party's request for cross-examination and to adjudicate the case afresh in accordance with law and principles of natural justice.