2021 (2) TMI 206 - AT - Customs

Violation of principles of natural justice - appellant s request for Cross- Examining three DRI Officers and One Mr. Bhaskar Bhatt, Chartered Engineer to be allowed or not? - HELD THAT - As per the facts in the Show Cause Notice , the report given by Shri Bhaskar Bhatt, Chartered Engineer has been relied upon. Since this witness is 3rd Party as far as appellant is concerned the Cross- Examination of Shri Bhaskar Bhatt, Chartered Engineer must be allowed to the appellant as mandated under section 138B of the Customs Act, 1962 - From section 138B it is clear that the statement given by a person as a witness must be examined, then only the same can be admitted in evidences. In the present case the valuation report given by Chartered Engineer, Shri Bhaskar Bhatt has been relied upon in the Show Cause Notice and considered as one of the important witnesses. Therefore, it is mandatory on the part of the adjudicating authority to allow the Cross- Examination of Shri Bhaskar Bhatt, Chartered Engineer in terms of section 138B. Cross- Examination of three DRI Officers - HELD THAT - As regard allegation of the appellant that the officer have recorded the statement under duress threat and pressure. It is up to the witnesses whose statements were recorded to dispute this charges, if anything exist. As regard the charge of inflation of the value multifold, the appellant has all the right to challenge it on the basis of the document and the same can be discarded if the valuation done by the DRI Officers is incorrect therefore, for this reason, in our considered view there is no need of Cross-examination of the DRI Officers. The DRI Officers have performed their duty as required in the law. The Adjudicating Authority shall allow the Cross- Examination of Shri Bhaskar Bhatt, Chartered Engineer. The request for Cross- Examination of DRI Officers is rejected - Appeal allowed in part.

Summary

Issues:
Request for Cross-Examination of DRI Officers and Chartered Engineer denied by Commissioner.

Analysis:
The appellant filed an appeal against the denial of the request for Cross-Examination of three DRI Officers and a Chartered Engineer by the Commissioner. The appellant argued that the valuation report relied upon in the Show Cause Notice was incorrect and sought to cross-examine the Chartered Engineer. The appellant claimed that the DRI officers recorded statements under pressure and did not consider all documents, leading to an inflated value of goods. The appellant cited various judgments to support their case.

On behalf of the revenue, the Authorized Representative reiterated the reasons for denying the Cross-Examination. Both sides were heard, and the records were examined. The main issue was whether the appellant's request for Cross-Examination should be allowed. The Tribunal noted that the Chartered Engineer's report was crucial and mandated Cross-Examination under section 138B of the Customs Act, 1962. This section requires examination of a witness before admitting their statement as evidence.

The Tribunal found that Cross-Examination of the Chartered Engineer was necessary as per section 138B. However, regarding the DRI Officers, the Tribunal did not find the appellant's reasons convincing. The Tribunal stated that the officers had performed their duties as required by law, and the appellant could challenge the valuation based on documents without Cross-Examination. Thus, the request for Cross-Examination of DRI Officers was rejected.

Consequently, the Tribunal ordered the Adjudicating Authority to allow Cross-Examination of the Chartered Engineer and directed completion of the adjudication process within three months. The appeal was partly allowed based on these findings. The judgment was pronounced on 04.02.2021.