2013 (9) TMI 142 - HC - Customs

Detention under COFEPOSA - Fair Chance of Representation - Whether if a person was detained under COFEPOSA and due to which he could neither file proper reply nor appear for personal hearing granted to appellant, can it be said that Shri. Niranjan Puthran was given a fair chance of representing the case for appellants since at the material time, Shri. Niranjan Purthan was the only person who was conversant with the facts of the whole case and his presence was absolutely necessary at the time of inquiry of the notice - Held that - There was no reason to entertain the proposed question of law as the present proceedings were against the appellant and not against Mr. Niranjan Puthran - In the circumstances he had no independent right to be heard before passing of any order against the appellant which was a private limited company having five more Directors - It was pertinent to note that none of the other Directors have at any time even suggested that the appellant company was prejudiced in the enquiry due to the absence of Mr. Niranjan Puthran - Further, neither had the appellant pointed out how the absence of Mr. Niranjan Puthran during the enquiry proceeding has occasioned failure of justice. The CHA licence which had been revoked belongs to the appellant - The appellant appeared before the Enquiry Officer through an advocate - in the absence of its Director Mr. Niranjan Puthran (being in Jail) it was not possible for it to properly represent its case and the same resulted in prejudice to the appellant - The appellant sought cross examination of all persons save and except Mr. Niranjan Puthran - the statement of Mr. Niranjan Puthran which in the case was against the appellant was accepted by the appellant as the same was never challenged by the appellant. The issue of breach of natural justice was an after thought particularly so in views of the fact that the appellant took up this stand only after passing of the final order - It was not the case of the appellant that it was not given proper notice or that it could not appear during the proceeding leading to miscarriage of justice - Moreover, it must be pointed out that even before us the appellant has not indicated how the availability of Mr. Niranjan Puthran would have resulted into the charges against the appellant being dropped. In case parties are allowed to raise fresh plea after conclusion of original and first appellate proceeding, no dispute would even come to an end - Decided against Petitioner.

Summary

Issues:
1. Challenge to final order revoking CHA license by Customs Excise and Service Tax Appellate Tribunal.
2. Fair chance of representation in case of detention of a key person.
3. Violation of CHALR by assisting in misdeclaration of imported goods.
4. Enquiry proceedings against the appellant.
5. Rectification application based on breach of natural justice.
6. Allegation of inability to properly represent the case due to Director's detention.
7. Consideration of breach of natural justice and plea timing.
8. Appellant's right to be heard in absence of Director during proceedings.
9. Entertaining new issues at the stage of second appeal.
10. Dismissal of the appeal.

Analysis:
1. The appeal challenged the revocation of the Customs House Agents (CHA) license by the Customs Excise and Service Tax Appellate Tribunal (Tribunal) based on the final order dated 24 December 2007.
2. The issue raised was whether a fair chance of representation was provided when a key person was detained during the proceedings.
3. The appellant was involved in misdeclaring imported goods, assisting in importing analog watch movements as plastic parts of toys, leading to violation of CHALR.
4. Enquiry proceedings were conducted against the appellant under Regulation 22 of CHALR, with charges framed and evidence presented.
5. A rectification application was filed based on the alleged breach of natural justice due to the Director's detention during the proceedings.
6. The appellant claimed that the Director's detention resulted in the inability to properly represent the case, leading to prejudice.
7. The timing of raising the plea of breach of natural justice was questioned, as it was brought up only after the final order was passed.
8. The court considered the appellant's right to be heard in the absence of the Director during the proceedings and the impact on the case.
9. The issue of entertaining new issues at the second appeal stage was discussed, emphasizing the need for timely raising of relevant points.
10. The appeal was ultimately dismissed, with the court finding no grounds to entertain the plea based on the circumstances presented during the proceedings.