2018 (1) TMI 880 - HC - Customs

Principles of Natural Justice - stand of the department is that certain documents are not available, the rest are already on record - Held that - If the case of the petitioners is that they are in possession of copies of any of the additional documents, though the department contends that the same are not available, it would be open for the petitioners to produce the same before the adjudicating authority. The adjudicating authority shall proceed afresh after enabling the petitioners to produce additional documents if they so desire and also give opportunity to participate in the proceedings and make submissions - appeal allowed by way of remand.

Summary

Issues:
Challenge to order due to breach of natural justice in conducting proceedings.

Analysis:
The petitioners challenged an order dated 25.04.2017, citing a serious breach of natural justice during the proceedings. They argued against being relegated to the appeal route, emphasizing errors made by the adjudicating authority. The Customs Excise & Service Tax Appellate Tribunal (CESTAT) had directed the departmental authorities to bring crucial documents on record in a previous round of litigation. However, the fresh order passed failed to consider these directions, leading to a lack of proper hearing and recording incorrect information about the petitioners not bringing the documents on record.

In response to the CESTAT's directions regarding the vital documents, the Commissioner of Customs (Kandla) passed a fresh order without including these documents. The department claimed to have requested the documents from DRI, Mumbai, but they were not supplied. The petitioners later obtained the documents directly from DRI, Mumbai. The Tribunal's judgment with the directions remained unchallenged by the department, making it necessary for them to comply. The court emphasized that the department cannot shift the responsibility of producing documents onto the petitioners and ordered the respondents to file an affidavit clarifying the availability of the documents with DRI Mumbai or any other Union of India authority.

In response to the court's order, the Deputy Commissioner of Customs, Kandla, stated in an affidavit that certain documents were not available, while others were already on record. The court highlighted that if the petitioners possess copies of the additional documents, they should produce them before the adjudicating authority. Consequently, the impugned order dated 25.04.2017 was set aside, and the adjudicating authority was directed to proceed afresh, allowing the petitioners to submit additional documents if desired. The petitioners were also granted the opportunity to participate in the proceedings, make submissions, and raise contentions regarding non-availability of documents, including adverse inferences against the department. The judgment concluded by disposing of the petition accordingly and discharging the notice.