2018 (2) TMI 2029 - HC - Customs

Maintainability of petition - alternative remedy of appeal - right to cross-examine the makers of statements which are heavily relied upon - Smuggling - foreign origin gold bars - vehicle Nissan Micra Car - penalty - infringement of principles of natural justice or not - HELD THAT - No doubt there is lapse on the part of the first respondent in not passing an order negativing the request of the petitioner as and when it was made. If a request for cross examination of witnesses or supply of certain document is made the authority is obliged to dispose of the said request then and there. If a request for adjournment is made again it will have to be dealt with then and there. It is not proper on the part of the authority to receive applications making such a request and dispose them of while passing the final order. The order rejecting the request made in the application forms an internal part of the final order. Such an approach is to be frowned upon. But on this score this Court does not propose to interfere in the matter. In the light of the decisions rendered by the Hon ble Delhi High Court in SUDHIR SHARMA RN. ZUTSHI AJAY YADAV YASH PAL VK. KHURANA TRK. REDDY PRADEEP RANA ANIL MADAN VERSUS THE COMMISSIONER OF CUSTOMS UNION OF INDIA AND ANOTHER 2015 (3) TMI 820 - DELHI HIGH COURT this Court is of the view that the petitioner has not made out a case that the adjudicating authority has violated the principles of natural justice. Only if the infringement of the principles of natural justice is categorically demonstrated this Court would be justified in permitting the petitioner to bye-pass the statutory remedy available to him. In as much as the petitioner has not made out a case of infringement of principles of natural justice by the first respondent this Court is of the view that the writ petitioner can rather workout his remedies in terms of the statutory scheme laid down in the Customs Act 1962. This Court is of the view that since the petitioner has been relegated to availing the alternate remedy of appeal there is no necessity to examine if the impugned order is resting on materials other than the statements of the said co-notices - The petitioner is at liberty to file an appeal before the appellate authority - petition dismissed.

Summary

Issues: Challenge to order confiscating seized gold bars and vehicle, imposition of penalty, right to cross-examine co-noticees, infringement of principles of natural justice

Confiscation and Penalty Issue:
The petitioner challenged the order confiscating 119 pieces of foreign gold bars and a vehicle, along with the imposition of a penalty of Rs. 2.00 crores. The Directorate of Revenue Intelligence intercepted a car carrying the contraband and implicated the petitioner as the mastermind behind the smuggling activities. The petitioner denied involvement, requested cross-examination of witnesses, and submitted replies during adjudication proceedings. The order passed under various sections of the Customs Act, 1962, was contested on grounds of natural justice and statutory compliance.

Right to Cross-Examine Issue:
The petitioner demanded the right to cross-examine co-noticees who had made statements under the Customs Act, 1962. The defense argued against allowing cross-examination, citing strategic refusals by accused individuals and potential abuse of the process. Legal precedents from the Allahabad High Court and Delhi High Court were referenced to support the contention that natural justice principles do not mandate cross-examination of co-noticees in cases involving contraband smuggling and joint criminal activities.

Infringement of Natural Justice Issue:
The petitioner contended that the denial of the right to cross-examine witnesses infringed the principles of natural justice. However, the court found that the adjudicating authority's actions did not amount to a violation of natural justice, as the petitioner failed to demonstrate a clear infringement. The court emphasized that statutory remedies should be exhausted unless a definitive breach of natural justice is proven, as per legal interpretations and precedents cited during the proceedings.

Judgment and Dismissal:
The court dismissed the writ petition, directing the petitioner to pursue the statutory remedy of appeal. The court held that the petitioner could not re-litigate the issue of cross-examination during the appeal process. The dismissal was based on the lack of established infringement of natural justice and the need to follow the statutory scheme outlined in the Customs Act, 1962. The petitioner was granted liberty to raise other issues in the appeal, excluding the right to cross-examine co-noticees. The court clarified that the time spent on the writ petition would not affect the period for filing the appeal, and no costs were awarded in the case.