2016 (2) TMI 652 - AT - Customs

Export of antique items - old metallic coins - silver kamar band - confiscation and penalty - relied upon documents are not provided to the appellant - appellant stated that his cross-examination is absolutely crucial because he needs to be questioned on several aspects including (i) whether he was duly authorised by D.G., ASI as required under Section 24 of AAT Act, (ii) the methodology which was adopted by him for coming to a finding that the impugned goods were antiques and (iii) how was it ensured that the goods which were examined by him were actually those which were seized. Held that - not permitting cross-examination of Mr. Manjhi is grossly violative of the principles of natural justice and therefore the impugned order is not sustainable. However, we may add here that violation of principles of natural justice is a curable defect - however cross examination of panchas not allowed - as we have already come to a conclusion that denial of cross-examination of Mr. Manjhi is grossly violative of principles of natural justice and consequently the impugned order cannot be sustained and would need to be remanded for de novo adjudication, we refrain from expressing any view with regard to the liability of confiscation of the impugned goods seized at Pamposh Enclave. - Matter remanded back - Decided partly in favor of appellant.

Issues Involved:
1. Non-provision of documents relied upon by the adjudicating authority.
2. Reliance on documents not part of the Show Cause Notice.
3. Denial of cross-examination of key witnesses.
4. Legality of confiscation of goods under the Customs Act, 1962.
5. Confiscation of goods seized at Pamposh Enclave.

Detailed Analysis:

1. Non-provision of Documents:
The appellant contended that the documents relied upon by the adjudicating authority were not provided. However, it was found that the documents requested by the appellant were indeed provided via letters dated 20.02.2009 and 12.03.2009. This ground was also not raised in the appellant's appeal, leading the tribunal to dismiss this contention.

2. Reliance on Documents Not Part of the Show Cause Notice:
The appellant argued that the adjudicating authority relied on documents, such as the report of Mr. Hari Manjhi, which were not part of the Show Cause Notice. The tribunal referred to a Delhi High Court judgment which validated the issuance of the Show Cause Notice based on the opinion of Mr. Dharamvir Sharma. Furthermore, the High Court had directed the Commissioner of Customs to complete adjudication proceedings after providing the appellant with the requested documents, including Mr. Manjhi's report. Therefore, this contention was also dismissed.

3. Denial of Cross-examination of Key Witnesses:
The appellant was denied the opportunity to cross-examine Mr. Hari Manjhi, whose report was crucial in determining that the impugned goods were antiques. The tribunal found that cross-examination was necessary to ascertain the validity of Mr. Manjhi's report, especially regarding his authorization under Section 24 of the AAT Act. The tribunal held that the denial of cross-examination was grossly violative of the principles of natural justice, thus vitiating the proceedings. However, the tribunal found no prejudice in the denial of cross-examination of the panchas and Mr. Dharamvir Sharma, as their testimonies were not pivotal to the case.

4. Legality of Confiscation under the Customs Act, 1962:
The tribunal noted that even if the coins seized at the airport were not antiques, their confiscation under Section 113(i) of the Customs Act, 1962, would be sustainable because the appellant did not declare them as required under Section 77 of the Customs Act.

5. Confiscation of Goods Seized at Pamposh Enclave:
The appellant argued that the coins seized at Pamposh Enclave were not liable to confiscation under Section 113(d) of the Customs Act, 1962, as possession of antiques is not an offense, and there was no attempt to export them. The tribunal refrained from expressing a view on this issue, as the denial of cross-examination of Mr. Manjhi necessitated a remand for de novo adjudication.

Conclusion:
The appeal was allowed by way of remand to the primary adjudicating authority for de novo adjudication, including the opportunity for the appellant to cross-examine Mr. Hari Manjhi. The tribunal emphasized the importance of adhering to the principles of natural justice and ensuring that the appellant is not prejudiced by the denial of cross-examination.

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