2011 (2) TMI 1062 - AT - Customs

Waiver of pre-deposit - marine vessels with its destination to Colombo was found sailing between Bombay coast and Gujarat coast - Customs officers seized the vessel - vessel was engaged in smuggling diesel - appellants applied for provisional release of the vessel but the request was rejected - appellants submitted that the learned Commissioner chose to hurriedly dispose of the case without granting a reasonable opportunity of meeting the case of the department - Held that - Having utmost concern over the denial of natural justice as had the case been decided by the Commissioner after giving a reasonable opportunity of being heard and after careful application of mind to the relevant judgments/orders of the Hon ble High Courts and to the available evidence, he could have passed a better order. The order of adjudication, as it stands, has got to be set aside on account of the infirmities pointed out by the learned counsel - appeals allowed by way of remand with a request to the Commissioner of Customs (Import), Mumbai to pass a speaking order on all issues in accordance with law and the principles of natural justice.

Issues Involved:
1. Waiver of pre-deposit and stay of recovery.
2. Confiscation of marine vessels and diesel oil.
3. Jurisdiction of the Commissioner of Customs, Ahmedabad.
4. Denial of natural justice and opportunity for cross-examination.
5. Imposition of penalties and fines.

Detailed Analysis:

1. Waiver of Pre-deposit and Stay of Recovery:
The appellants sought a waiver of pre-deposit and stay of recovery of the adjudged amounts. The tribunal, after examining the records and hearing both sides, found it fit to remand the case and dispensed with the pre-deposit, proceeding to deal with the appeals.

2. Confiscation of Marine Vessels and Diesel Oil:
The case involved two marine vessels, 'Al-Rehmat' and 'Rajveer'. 'Al-Rehmat' was found with 429 MTs of diesel, suspected of smuggling activities, leading to its seizure by Customs officers. Statements from the crew indicated that part of the diesel was discharged into 'Rajveer'. The Commissioner of Customs, Ahmedabad, issued a show-cause notice proposing to confiscate the vessel and the diesel oil under Sections 111 and 115 of the Customs Act. The Commissioner confirmed the redemption fine and penalties imposed provisionally and ordered further penalties under Section 114A of the Customs Act. The tribunal noted that the confiscation and penalties were based on crew statements, with no diesel found on 'Rajveer', highlighting the need for cross-examination of witnesses.

3. Jurisdiction of the Commissioner of Customs, Ahmedabad:
M/s Moon Star raised a jurisdictional issue, arguing that the Commissioner of Customs, Ahmedabad, lacked jurisdiction over the vessel 'Al-Rehmat', allegedly anchored beyond territorial waters. The Gujarat High Court allowed the petitioners to establish this fact as a preliminary issue. However, the tribunal found that the Commissioner did not consider this jurisdictional issue in his order, indicating non-application of mind to the High Court's directive.

4. Denial of Natural Justice and Opportunity for Cross-examination:
The appellants argued that the Commissioner hurriedly disposed of the case without granting a reasonable opportunity for personal hearing and cross-examination of witnesses. The tribunal noted that the Commissioner ignored the plea for cross-examination and did not consider preliminary submissions on record. This denial of natural justice was a significant concern, as cross-examination could have potentially altered the findings.

5. Imposition of Penalties and Fines:
The Commissioner imposed various penalties under Sections 112 and 114A of the Customs Act on multiple parties, including M/s Moon Star, M/s Raj Transport and Trading Co., and their employees. The tribunal found that the Commissioner imposed a penalty on Mr. Adi Mehta despite his earlier discharge, acknowledging this as an illegality. The tribunal set aside the penalty on Mr. Adi Mehta and highlighted the non-application of mind by the Commissioner in other penalty decisions.

Conclusion:
The tribunal set aside the Commissioner's order due to multiple infirmities, including denial of natural justice and non-application of mind. The case was remanded to the Commissioner of Customs (Import), Mumbai, with instructions to pass a speaking order on all issues, ensuring adherence to the principles of natural justice. The parties were to be given a reasonable opportunity to reply to the show-cause notices, adduce evidence, and be heard, with specific reasons for cross-examination to be duly considered. The tribunal requested the Commissioner to pass the final order within six months from the receipt of the certified copy of the order.

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