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2013 (5) TMI 659 - HC - CustomsPrinciples of natural justice and reasonableness in the conduct of the adjudication proceedings - rejection of petitioner s demand for cross examination of the persons named in the show cause notice - Whether contraband concealed in the export consignment and taken out in the guise of Indian Attars is unsustainable in law? - Held that - A perusal of the claim reveals that show cause notice can be visualised in one angle viz. that the counsel for the petitioner and the counsel for the co-noticee requested for an adjourment and it was granted for both of them. Further, three more personal hearings were granted on 26.09.2011, 18.10.2011 and 11.11.2011 and there was request on 20.09.2011, by the counsel for the co-noticee, who pleaded for leniency and mercy while passing the order. Another adjournment sought for was also granted. The hearing notice sent to M/s. Chennai Essential Oils and Aromatic was returned undelivered and then the notice was placed on the notice board. In the meantime, petitioner filed a writ petition before this Court and the said writ petition was disposed of on 08.12.2011 by directing the respondents to consider the petitioner s representation dated 14.11.2011. Thereafter, by a detailed order dated 13.01.2012, the respondents rejected the petitioner s claim for cross examination of the said persons named in the show cause notices. As there is no challenge to this order dated 13.01.2012, it has attained finality. But, only a consequential order passed alone was challenged wherein the confiscation of the prohibited goods was ordered and penalty of Rs. 30 lakhs on the 1st petitioner, Rs. 20 lakhs on the 2nd petitioner and Rs. 20 lakhs on proprietor of the supplier of Red Sanders. Immediately, without resorting to any further remedy, petitioners have rushed to this Court as if there is denial of an opportunity of cross examination.When the petitioners have not challenged the order dated 13.01.2012, on the question of denial of opportunity to cross examine the named persons, this Court cannot look into the matter as if there is violation of principles of natural justice. On the other hand, the order challenged being one which confiscated the prohibited goods and imposed penalty on the individual for their respective act, is an issue to be looked into by the appropriate appellate authority namely the CESTAT and without availing such a remedy, the petitioners have rushed to this Court. Thus the approach made by the petitioners by filing this writ petition without availing the appropriate appellate remedy by filing an appeal before the CESTAT is not appropriate in the given circumstances as the challenge is only to the order confiscating the prohibited goods and imposing penalty on the individuals. The reliance made by the counsel appearing for the petitioners on the various decisions of the High Court as well as the Hon ble Supreme Court of India are all matters concerned with the denial of an opportunity to cross examination. In the absence of any challenge to such a denial, these decisions cannot come to the rescue of the petitioners - writ petition dismissed. Against assessee.
Issues Involved:
1. Alleged violation of principles of natural justice. 2. Denial of cross-examination of witnesses. 3. Legality of the confiscation order and imposition of penalties. 4. Availability and appropriateness of alternative remedies. Detailed Analysis: 1. Alleged Violation of Principles of Natural Justice: The petitioners argued that the adjudication process violated the principles of natural justice by denying them the opportunity to cross-examine witnesses whose statements were relied upon in the show cause notices. They contended that this denial resulted in an unfair trial and that the impugned order should be quashed on this ground alone. The petitioners cited several judicial precedents to support their claim that the right to cross-examine is a fundamental aspect of natural justice. 2. Denial of Cross-Examination of Witnesses: The petitioners requested the cross-examination of four individuals whose statements were critical to the case. However, the adjudicating authority rejected this request on the grounds that the statements of these individuals did not directly relate to the act of smuggling perpetrated by the petitioners. The authority argued that the cross-examination was redundant as the statements were either voluntary or did not implicate the petitioners directly. The court noted that the petitioners had not challenged the order dated 13.01.2012, which denied their request for cross-examination, thus allowing it to attain finality. 3. Legality of the Confiscation Order and Imposition of Penalties: The court examined the procedural history and found that the Directorate of Revenue Intelligence (DRI) had intercepted containers containing prohibited goods, including sandalwood and red sanders, under the guise of exporting agarbathies and incense sticks. The adjudicating authority confiscated the prohibited goods and imposed penalties of Rs. 30 lakhs on the 1st petitioner, Rs. 20 lakhs on the 2nd petitioner, and Rs. 20 lakhs on Mr. Selvaraj, the supplier. The court held that the petitioners should have challenged the confiscation and penalties through the appropriate appellate forum, namely the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT), rather than filing a writ petition. 4. Availability and Appropriateness of Alternative Remedies: The court emphasized that the petitioners had an effective alternative remedy available through the CESTAT. The court noted that the petitioners' failure to challenge the denial of cross-examination in the order dated 13.01.2012 and their subsequent rush to the High Court without exhausting the appellate remedy rendered the writ petition inappropriate. The court reiterated that issues related to the merits of the case, such as confiscation and penalties, should be adjudicated by the appellate authority. Conclusion: The court dismissed the writ petition, stating that the petitioners should have availed the appellate remedy provided under the law. The court clarified that the order would not preclude the petitioners from challenging any other proceedings if they were aggrieved. The court also excluded the period during which the writ petition was pending from the limitation period for filing an appeal before the CESTAT.
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