2022 (9) TMI 917 - HC - Customs

Principles of natural justice - documents referred in the SCN not produced - relied upon documents or not - opportunity to cross-examine the persons whose statements are relied upon, were not provided - jurisdiction of the authority which raised SCN - HELD THAT - T he writ petitions are disposed of with the following directions (i) The respondent/revenue will furnish copies of all such documents referred to in paragraph 79, which are in their physical possession. The respondent/revenue will indicate, clearly, to the petitioners, as to which of those documents are not available in their record. This exercise will be completed within the next two weeks. (ii) Upon receipt of the documents referred to in clause (i) above, the petitioners shall file their final reply within two weeks thereafter. (iii) Once replies are filed, the adjudicating authority will fix a date for cross-examination of witnesses referred to in paragraph 79 (B-H). (iv) As soon as the aforementioned exercise is over, the concerned authority will proceed to adjudicate the SCN. (v) While adjudicating the SCN, the concerned authority will bear in mind, the objection raised by the petitioners, as regards his jurisdiction. The adjudicating authority will deal with this aspect of the matter, while passing the final order, concerning the aforementioned SCN.

Summary

Issues:
1. Non-provision of documents mentioned in the show-cause notice
2. Denial of opportunity to cross-examine witnesses
3. Question regarding the jurisdiction of the authority issuing the notice

Analysis:
1. The petitioners raised three main issues in the writ petitions. Firstly, they contended that they were not provided with the documents referenced in the show-cause notice (SCN) dated 29.06.2022, despite these documents not being relied upon by the respondent/revenue. These documents were mentioned in paragraph 79 of the SCN. Secondly, the petitioners argued that they were being deprived of the opportunity to cross-examine the individuals whose statements were being used against them, as identified in paragraph 79 (B-H) of the SCN. Lastly, the petitioners questioned the jurisdiction of the authority issuing the SCN.

2. The respondent's counsel argued that the authority had the necessary jurisdiction and powers to both issue the SCN and adjudicate on the matters raised within it, citing a notification from 24.08.2017. Regarding the provision of documents, the counsel stated that copies of the documents mentioned in paragraph 79 of the SCN would be provided if still in possession of the respondent/revenue. However, some of these documents were reportedly not found in their records. The counsel also mentioned that the opportunity for cross-examination would only be granted after the petitioners filed their final reply, as they had only submitted an interim reply at that point.

3. In response, the petitioners' counsel indicated that they would file a final reply once copies of the documents mentioned in paragraph 79 of the SCN, physically available with the respondent/revenue, were furnished. Subsequently, the court issued directions for the respondent/revenue to provide copies of the relevant documents within two weeks, after which the petitioners were instructed to submit their final reply. Following this, the adjudicating authority would schedule the cross-examination of witnesses mentioned in paragraph 79 (B-H) and proceed with adjudicating the SCN while considering the jurisdictional objection raised by the petitioners during the final order. The pending applications were to be closed accordingly.