2023 (10) TMI 245 - AT - Customs

Smuggling - non-supply of documents - denial of the right of cross-examination - seeking to remand the case to the jurisdictional Commissioner of Customs for fresh decision after supply of documents relied upon - HELD THAT - The learned Commissioner of Customs (Adjudication) while taking up the case in denovo adjudication had categorically mentioned about how he had gone ahead with ensuring provision of various documents sought by the parties from the department and cross examination of witnesses, keeping in view of the directions given by the Tribunal. He had recorded in the impugned order about the various documents provided by the DRI investigation to Shri Deepak Dialani through his advocate and few of the documents which could not be produced; he had also fixed up various dates for cross examination of all 17 witnesses, however could record the proceedings of cross examination conducted before him only in 4 cases, as others did not turn up. Thereafter, the learned Commissioner (Adjudication) has gone into the facts of the case, evidences available on record, and all the four cross examination record of the witnesses. He had also made clear that in view of the Hon ble Supreme Court s judgement in the case of Gopal Saran Vs. Satyanarayana 1989 (2) TMI 415 - RAJASTHAN HIGH COURT , that evidences of those persons who were not made available for cross examination not being treated as evidences, as if such evidences simply does not exist, the statements and panchnamas of remaining persons whose cross examination could not be conducted before him, he had completely ignored and discarded those as evidence. From the net result of the cross examination of 4 witnesses and the non- availability of other witnesses, documents that have been produced during the proceedings, the learned Commissioner (Adjudication) had arrived at the conclusion that all the allegations based on the statements of these witnesses recorded under Section 108 of the Customs Act have to be discarded and the show cause notice proceedings has to be discharged as liable to withdrawn or dropped. Similarly, he dropped the show-cause notice dated 12.09.1997 in his other order dated 16.02.2009. On perusal of the impugned orders, it is found that denovo proceedings have been conducted in accordance with the law, abiding by the principles of natural justice duly giving opportunity for personal hearings, opportunity for cross examination and submission of documents/evidences by both the parties to the dispute. Further, various legal provisions regarding demand of duty, imposition of penalty have been examined by the learned Commissioner (Adjudication) on the basis of evidences after examining the burden of proof under Section 123 ibid. The impugned orders do not require any interference - the appeals filed by the Revenue are dismissed.

Summary

Issues involved:
The issues involved in the judgment include non-supply of documents, denial of the right of cross-examination, compliance with remand directions, and sustainability of the impugned orders in law.

Non-Supply of Documents and Cross-Examination:
An investigation by the Directorate of Revenue Intelligence revealed a smuggling racket involving computer parts and peripherals. The show cause notice proposed duty demand and penalties on the main accused and others. The Commissioner (Appeals) confirmed the demands and penalties. Upon appeal, the Tribunal ordered denovo adjudication due to non-supply of documents and denial of cross-examination rights. The Commissioner of Customs conducted the denovo adjudication, providing documents and allowing cross-examination. The Commissioner disregarded statements of witnesses not cross-examined, concluding that the allegations lacked credibility. Consequently, the show cause notice proceedings were dropped.

Compliance with Remand Directions:
The Tribunal's remand directions were followed in the denovo adjudication. The Commissioner ensured the provision of documents and cross-examination of witnesses as per the Tribunal's order. The Commissioner's order detailed the documents provided, cross-examination proceedings, and the disregard of unexamined witness statements based on legal precedents. The Commissioner concluded that the accused was not the importer and thus not liable for duty. The impugned orders were found to comply with the Tribunal's directions and legal principles.

Sustainability of Impugned Orders:
The denovo proceedings were conducted in accordance with the law, ensuring natural justice and opportunities for both parties to present evidence. The Commissioner examined legal provisions on duty demand and penalty imposition, considering the burden of proof and relevant legal decisions. The impugned orders were deemed sustainable, and the appeals filed by the Revenue were dismissed, affirming the decisions made by the Commissioner.