2011 (1) TMI 634 - AT - Customs

Waiver of pre-deposit - Application for stay - Principle of natural justice - Confiscation - It is settled law that cross-examination of witness cannot be claimed as a matter of right by any person involved in an adjudication proceedings - Once a witness has been cross-examined, it is open to either side to claim support from the record of cross-examination, at the final hearing stage - In case the originals of any of such documents are required to be retained for purposes of prosecution, or any on-going investigations relating to these appellants, such documents shall be retained and copies thereof should be supplied to the appellants - Held that Commissioner shall have no liability to furnish any information to the appellants if he finds that such information belongs to extra-departmental authorities - The obligation of the Commissioner pertains exclusively to the documents which are within his command - Decided in favor of the assessee

Summary

Issues Involved:

1. Waiver of pre-deposit and stay of recovery of penalties.
2. Alleged negation of natural justice.
3. Confiscation of foreign currencies.
4. Denial of cross-examination requests.
5. Non-return of non-relied-upon documents.
6. Number of opportunities for personal hearings.

Detailed Analysis:

1. Waiver of Pre-deposit and Stay of Recovery of Penalties:
The appellants sought waiver of pre-deposit and stay of recovery concerning penalties imposed by the adjudicating authority under Section 114(i) of the Customs Act. The penalties were Rs. 25 lakhs, Rs. 1.25 crores, and Rs. 50 lakhs respectively. The Tribunal, after considering the submissions and perusing the records, decided to dispense with the pre-deposits and take up the appeals for final disposal.

2. Alleged Negation of Natural Justice:
The appellants contended that they were not given a reasonable opportunity to be personally heard before the impugned order was passed. They also claimed that their request to cross-examine certain officers and others was rejected without a proper hearing. The Tribunal found that the adjudicating authority disposed of the case hurriedly without adhering to the principles of natural justice. It was noted that the appellants did not receive a third opportunity for a personal hearing, which they were entitled to under Section 122A of the Customs Act.

3. Confiscation of Foreign Currencies:
The impugned order involved the absolute confiscation of foreign currencies equivalent to Rs. 1,25,22,750/- under Section 113 of the Customs Act, read with the Foreign Exchange Management Act, 1999. The Tribunal noted that the confiscation was carried out without giving the concerned parties an opportunity to be heard, which was a violation of natural justice.

4. Denial of Cross-examination Requests:
The appellants' request for cross-examination of certain witnesses was denied by the adjudicating authority, with the reasoning to be communicated only in the final order. The Tribunal emphasized that cross-examination is an integral part of evidence-taking and must be considered on its merits. The denial of cross-examination without proper reasoning being provided beforehand was deemed a violation of natural justice.

5. Non-return of Non-relied-upon Documents:
The appellants argued that documents seized from their premises but not relied upon in the show-cause notice were not returned despite repeated requests. The Tribunal found that the non-relied-upon documents were indeed not returned to the appellants. Citing case law, the Tribunal reiterated that such documents must be returned to the parties to enable them to prepare their defense.

6. Number of Opportunities for Personal Hearings:
The Tribunal noted that the appellants were not given a third opportunity for a personal hearing, which they were entitled to under Section 122A of the Customs Act. The adjudicating authority had the discretion to grant adjournments, but it should have provided a reasonable opportunity for the appellants to be heard, especially after the submission of their replies to the show-cause notices.

Conclusion:
The Tribunal set aside the impugned order and allowed the appeals by way of remand. The Commissioner of Customs was directed to undertake de novo adjudication of the case in accordance with the law and the principles of natural justice. The Commissioner was instructed to return the non-relied-upon documents, consider the requests for cross-examination on their merits, and provide a reasonable opportunity for personal hearings. A speaking order addressing all issues was mandated to be passed within six months from the receipt of the Tribunal's order. The appellants were also instructed to cooperate with the adjudicating authority and not seek adjournments except on exceptional grounds.