2023 (9) TMI 933 - AT - Customs

Ex-parte order - Appellant could not represent its case due to medical conditions - Smuggling - Gold of Foreign Origin - HELD THAT - Para 20(b) of the Show Cause Notice dwells with the role of the appellant and it only indicates the details of other caes where too the notice is said to be involved in smuggling of gold - it is further that the dates as indicated in medical records of the appellant overlap, coincide and are around the time period herein. Though the appellant has enclosed his medical history for the years 2004-2010 and onwards, it is however noted from the case records, that around the time in January/February 2015, the appellant was undergoing medical tests and treatment at various hospitals and medical college at Guwahati and Delhi and therefore, may have been constrained to cause appearance before the authorities. It is clear from the medical records that almost since January/February of 2015, the appellant has been under constant medical treatment and has been stated to have been admitted at a medical facility subsequently. There are merit in the appellant s plea that he was in not in a physical and mental state to even in the least focus on the issue, concerning the present matter. It appears from the medical history submitted that the diagnosis of suffering from Pituitary Adenoma has been done as early as, sometimes in January-February 2015. The appeal filed by the appellant is allowed by way of remand to the original authority.

Issues involved: Appeal against penalty imposed by Ld. Commissioner of Customs for alleged involvement in smuggling of gold.

Summary:

Issue 1: Imposition of penalty by Ld. Commissioner

The impugned appeal was filed against the penalty of Rs.10,00,000 imposed by the Ld. Commissioner on the appellant for his alleged involvement in smuggling of gold. The appellant, a bullion dealer operating out of Guwahati, was accused based on the recovery of primary gold from another individual, Nimtosh Paul. The appellant denied knowing Nimtosh Paul and claimed innocence in the matter. The Departmental Representative supported the penalty imposed by the Ld. Commissioner, citing the appellant's alleged involvement in other smuggling cases.

Issue 2: Lack of appearance and defense by the appellant

During the proceedings, it was noted that the appellant did not appear before the authorities, did not respond to the show-cause notice, and did not attend the personal hearing. The appellant's advocate clarified that they were not connected to the seized gold and did not claim ownership. The Ld. Commissioner, however, concluded that the appellant was knowingly involved and considered him the mastermind based on previous cases. The appellant's advocate argued that there was insufficient evidence of his involvement and highlighted the appellant's medical condition (Pituitary Macro Adenoma) during the relevant period, which hindered his ability to participate in the proceedings.

Issue 3: Remand of the matter for fresh adjudication

Considering the appellant's medical condition and lack of opportunity to present a defense, the Tribunal set aside the Ld. Commissioner's order and remanded the matter for a fresh adjudication against the appellant. The Tribunal emphasized the appellant's right to be heard and urged the Ld. Commissioner to expedite the process within four months. The appeal was allowed by way of remand to the original authority for further proceedings.

Conclusion:

The Tribunal acknowledged the appellant's right to a fair hearing and remanded the matter for a fresh adjudication, taking into account the appellant's medical condition and the need for due process in the proceedings.

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