2017 (2) TMI 352 - AT - Customs

Natural justice - imposition of penalty u/s 112(a) and / or 112(b) of the Customs Act, 1962 - The impugned Order is undisputedly an ex-parte Order so far as the appellant is concerned. Neither Show Cause notice dated 5.4.2001, nor the personal hearing intimations were received by the Appellant or his son Shri Nitesh Sadarangani - Held that - Although there is a reference to the appellant in this gist of statement dated 19.10.2000, however as per this gist of statement the appellant was only present in the Warehouse at Vashi, when the container was destuffed. There is however no role attributed to the appellant which can be sufficient for imposition of penalty indicating any knowledge or mens rea - it would be in the interest of justice if the matter is remanded back for de-novo adjudication after complying with the principles of natural justice - appeal allowed by way of remand.

Summary

Issues:
1. Condonation of delay in serving notice and Order-in-Original.
2. Ex-parte Order against the Appellant.
3. Imposition of penalty under Sections 112(a) and 112(b) of the Customs Act, 1962.
4. Findings based on statements of involved parties.
5. Lack of opportunity for the Appellant to respond to statements.
6. Remand for de-novo adjudication.

Analysis:
1. The appeal involved a delay in serving the Show Cause notice and Order-in-Original, leading to the appellant being abroad during the relevant period. The Tribunal, while condoning the delay, emphasized the need for fairness and justice, allowing the appeal subject to a cost of ?5,000 to be paid within a month.

2. The impugned Order was ex-parte against the Appellant, as neither the Show Cause notice nor personal hearing intimations were received. The Appellant's son's appeal was dismissed as time-barred, but the Appellant's appeal was allowed after filing for condonation of delay and paying the cost.

3. The penalty under Sections 112(a) and 112(b) of the Customs Act, 1962 was imposed based on specific findings against the Appellant. However, the Tribunal found that the findings were solely based on statements of involved parties, without providing the Appellant an opportunity to respond or cross-examine.

4. The statements of individuals involved were crucial in determining the penalty. The Tribunal highlighted discrepancies in the statements and concluded that there was insufficient evidence to impose a penalty on the Appellant based solely on those statements.

5. The Tribunal scrutinized the gist of the statements provided in the Order and found that they did not establish a case for penalty against the Appellant. It was noted that the statements lacked evidence of the Appellant's involvement or knowledge in the alleged offenses.

6. In light of the above, the Tribunal set aside the penalty imposed against the Appellant and remanded the matter for de-novo adjudication. The Appellant was to be provided with all relevant documents and statements, given an opportunity to respond, and ensured a fair adjudication process following the principles of natural justice.

This detailed analysis outlines the key issues addressed in the judgment, including the condonation of delay, the ex-parte nature of the Order, the basis for imposing penalties, the reliance on statements, the lack of opportunity for the Appellant to respond, and the decision for remand for a fresh adjudication process.