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2022 (4) TMI 143 - AT - CustomsPrinciples of natural justice - request for cross examination of panch-witnesses and of departmental officers has been rejected - evasion of Customs Duty - mis-declaration of brand of goods/ description of the goods - HELD THAT - The right to cross examination is considered as a principle of natural justice as it corresponds to foremost principle of natural justice what is commonly known as audi alteram partem and the absence thereof may adversely affect the party. As it was held by Hon ble Apex Court in the case of CANARA BANK AND ORS. VERSUS SHRI DEBASIS DAS AND ORS. 2003 (3) TMI 664 - SUPREME COURT and was reiterated in the case titled as NAGARJUNA CONSTRUCTION CO. LTD VERSUS GOVT. OF ANDHRA PRADESH AND ORS 2008 (10) TMI 686 - SUPREME COURT . The Constitution Bench of Hon ble Apex Court earlier in the case of Sate of STATE OF M.P. VERSUS CHINTAMAN SADASHIV WAISHAMPAYAN 1960 (11) TMI 130 - SUPREME COURT has held that rules of natural justice requires that party must be given the opportunity to adduce all relevant evidence upon which he relies and further that the evidence of positive commencement should be taken in his presence was that he be given an opportunity to cross examination, the witnesses examination of the other party charges the non providing of the said opportunity was held to be violation of principles of natural justice. Coming to the facts of the present case, the allegations of Show Cause Notice are based upon the physical examination of the goods that too in the presence of the appellant and the appellant s proprietor. He had declared the said goods in the Bill of Entry as unbranded TV panels. There is no denial of the appellant that said physical examination revealed that the goods instead of being TV parts were LED TVs of Samsung brand though in SKD form. There is no denial that the parts were imported in different consignments. In his statement dated 15.01.2018 the appellants proprietor himself has admitted that there was no written agreement or contract existed for the export nor any written purchase order placed nor even any written quotation /proforma invoice was supplied to him with respect to the goods in question - the definite match was observed by the investigating team in the documents submitted by the importer / appellant at the time of importing goods and the invoices recovered during investigation. These documents were recovered from the appellant s own mail which was got opened by him in the presence of investigating officer but on the computer installed in the SIIB brand. He also put his signatures on the print outs of various emails retrieved from his emails. These documents have been made the basis for allegations in the impugned Show cause notice. Nothing cogent has been brought in reply to the Show Cause Notice to prima facie falsify the allegation of show cause notice or even to make the case of any prejudice or to establish that some prejudice has been caused to the appellant by procedure followed. There is no case of the appellant that his statement dated 15.01.2018 was his involuntary statement given in coercion. No retraction is at all apparent on record - The Hon ble Apex Court in the case of SURJEET SINGH CHHABRA VERSUS UNION OF INDIA 1996 (10) TMI 106 - SUPREME COURT has held that confession though retracted is an admission and binds the petitioner. The Customs Officer is not a police officer. Hence the confession made to them is an admissible evidence, hence there will be no need to permit the cross examination of the panch witnesses. The Adjudicating Authority has committed no error while denying the opportunity of cross examination of investigating officers and the panch witnesses - Appeal dismissed.
Issues Involved:
1. Denial of cross-examination of panch witnesses and departmental officers. 2. Allegations of duty evasion through mis-declaration and undervaluation of imported goods. 3. Violation of principles of natural justice. 4. Re-determination of declared value and imposition of differential customs duty and penalty. Issue-wise Detailed Analysis: 1. Denial of Cross-Examination of Panch Witnesses and Departmental Officers: The appellant requested the cross-examination of nine witnesses and officers, which was denied by the adjudicating authority. The appellant argued that the right to cross-examination is an indefeasible right and its denial amounts to a violation of the principles of natural justice, specifically the principle of "audi alteram partem." The appellant contended that cross-examination was essential to challenge the allegations in the Show Cause Notice and to expose discrepancies in the investigation. The appellant cited several legal precedents to support this argument, including Zahira Habibullah Sheik vs State of Gujarat, Ayaaub Khan Noorkhan Pathan vs The State of Maharashtra, and Andaman Timber Industries vs Commissioner of Central Excise. 2. Allegations of Duty Evasion through Mis-Declaration and Undervaluation of Imported Goods: The appellant was accused of evading duty by mis-declaring the brand and description of imported goods and undervaluing them. The Show Cause Notice proposed rejecting the classification of the goods as parts and panels of LED TVs and reclassifying them as complete LED TV sets. The declared value was proposed to be re-determined, leading to a demand for differential customs duty and the imposition of a penalty. The Department argued that the appellant had declared the goods as unbranded LED TV panels, but upon examination, they were found to be Samsung-branded curved LED panels. The Department also alleged that the appellant was wrongly availing the benefit of exemption notification No. 50/2017-Cus. 3. Violation of Principles of Natural Justice: The appellant claimed that the denial of cross-examination violated the principles of natural justice. The Tribunal acknowledged that the right to cross-examination is a fundamental aspect of natural justice, as established in several Supreme Court judgments, including Canara Bank vs Shri Debasis Das and Nagarjun Construction Co. vs Government of Andhra Pradesh. However, the Tribunal also noted that the necessity of cross-examination must be established by the appellant. The Tribunal cited the case of Transmission Corporation of AP Ltd. vs. Shri Rama Krishna Rice Mill, which held that the adjudicating authority must consider requests for cross-examination and either grant them or provide a reasoned order for their denial. 4. Re-determination of Declared Value and Imposition of Differential Customs Duty and Penalty: The Tribunal examined the facts of the case and found that the allegations in the Show Cause Notice were based on the physical examination of the goods in the presence of the appellant and his proprietor. The appellant had admitted in his statement that there was no written agreement or contract for the export, and the invoices recovered during the investigation indicated that the goods were complete LED TVs supplied in SKD form. The Tribunal observed that the appellant had not provided any evidence to refute the allegations or to establish that any prejudice had been caused by the denial of cross-examination. The Tribunal cited the case of Surjeet Singh Chhabra vs Union of India, which held that a confession made to Customs Officers is admissible evidence and does not require cross-examination of the witnesses. Conclusion: The Tribunal concluded that the adjudicating authority had not erred in denying the cross-examination of the investigating officers and panch witnesses. The appeal was dismissed, and the order under challenge was upheld. Pronouncement: The judgment was pronounced in the open Court on 31.03.2022.
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