2014 (11) TMI 735 - AT - Customs

Violation of principle of natural justice - Opportunity for cross examination not given - over valuation of the export consignment - Imposition of penalty - Held that - Commissioner has not allowed cross-examination of the deponents whose statement were relied upon on the ground that the said statements were recorded under Section 108 of the Customs Act and have not been retracted. We are afraid that we find no merits in the said observation of the Adjudicating Authority. Every statement during the course of investigations in matters related to Customs is recorded under Section 108 of the Customs Act only and if the said ground is adopted as a reason for denial of cross-examination there would be never ever be any cross-examination of any deponent during the proceedings. This cannot be allowed to be happened. Revenue by not allowing the cross-examination of the witnesses and the experts whose statements and opinions are being relied upon by them have committed the gross violation of principles of natural justice. On this limited ground and without expressing any opinion on the merits of the case we set aside the impugned order and remand all the appeals to the Adjudicating Authority for fresh decision - Decided in favour of assessee.

Issues:
1. Denial of cross-examination of witnesses by the Revenue during adjudication process.
2. Imposition of penalties based on statements without allowing cross-examination.
3. Violation of principles of natural justice by the Revenue.

Analysis:

1. The Tribunal noted that the Revenue denied the appellant's request for cross-examination of witnesses during the adjudication process. The Commissioner justified this denial by stating that the statements were recorded under Section 108 of the Customs Act and had not been retracted. The Tribunal disagreed with this reasoning, emphasizing that the deponents of statements used against the assessee must be produced as witnesses to test their veracity. The Tribunal found no merit in the argument that the outcome of cross-examination needed to be pre-disclosed, as argued by the Revenue. The Tribunal also clarified that there were no directions from the Tribunal to seek comments from the Commissioner, as the only directive was for the advocate to place the summary of grounds for cross-examination on record.

2. The Tribunal cited a previous case involving a similar issue of overvaluation, where it was held that witnesses whose statements were relied upon and experts whose opinions were used in the show cause notice must be produced for cross-examination under Section 138B of the Customs Act. The Tribunal pointed out that by not allowing cross-examination of witnesses and experts, the Revenue had violated principles of natural justice. Therefore, without expressing any opinion on the case's merits, the Tribunal set aside the impugned order and remanded all appeals to the Adjudicating Authority for a fresh decision, emphasizing the need for relevant witnesses to be produced for cross-examination to ensure a fair process.

3. The Tribunal's decision was based on the gross violation of principles of natural justice by the Revenue in denying cross-examination of witnesses and experts. The Tribunal highlighted that such denial undermined the fairness of the adjudication process. As a result, the impugned order imposing penalties was set aside, and all appeals were remanded for a fresh decision, with a specific directive to allow cross-examination of relevant witnesses. The Tribunal's decision focused on upholding the principles of natural justice and ensuring a fair and transparent adjudication process.

This detailed analysis of the judgment highlights the issues of denial of cross-examination, imposition of penalties without allowing cross-examination, and the violation of principles of natural justice by the Revenue, as addressed by the Tribunal in its decision.

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