2016 (4) TMI 606 - AT - Customs

Seeking cross-examination of witnesses - Seizure of 6150 kgs of Red Sanders Wood - No cross examination of certain witnesses asked for was extended to the appellant - Held that - the Adjudicating authority cannot brush aside the request for cross examination of the relied upon witnesses / investigating officers. If for any reason the cross examination of witnesses cannot be extended then the Adjudicating authority has to intimate the appellant about such rejection by a separate letter as is now a settled legal position. So, the appellant should give a specific list of persons / witnesses to be cross examined and adjudicating authority should make efforts to provide the cross examination of such witnesses. - Matter remanded back

Summary

Issues:
Confiscation of Red Sanders wood under Customs Act 1962 - Penalty imposed on the appellant.

Analysis:
The appellant filed an appeal against the Order-in-Original (OIO) passed by the Commissioner of Customs, West Bengal, confiscating 6150 kgs of Red Sanders wood and imposing a penalty of ?5 lakh under Sections 113 and 114 (i) of the Customs Act 1962. The appellant claimed ownership of the seized goods, stating they were legally acquired with valid documents. The appellant argued that the purchase and sale of Red Sanders wood were not prohibited under the West Bengal Forest Produce Transit Rules 1959. The appellant requested cross-examination of witnesses, which was denied by the Adjudicating authority. The appellant also disputed the findings of the Adjudicating authority regarding the restriction on sale/purchase of Red Sanders wood. The appellant contended that there was no evidence of any attempt to export the seized goods.

The Revenue argued that the appellant had no authority to store Red Sanders wood in Kolkata and alleged that the goods were meant for illegal exportation. The Adjudicating authority upheld the confiscation and penalty.

After considering the arguments from both sides and examining the case records, the Tribunal observed discrepancies in the handling of the seized Red Sanders wood. The Adjudicating authority failed to address whether the hammer markings on the seized goods matched the documents provided by the appellant. The Tribunal noted the lack of cross-examination of witnesses requested by the appellant. It was also highlighted that the Adjudicating authority did not seek an opinion from the West Bengal forest department to verify the authenticity of the documents and procedures followed by the appellant.

In the interest of justice, the Tribunal remanded the matter to the Adjudicating authority for further proceedings. The Adjudicating authority was directed to allow cross-examination of witnesses requested by the appellant, provide specific findings on the hammer marks of the forest departments, and consider the appellant's claim of ownership of the seized goods. The appellant was granted the opportunity to justify their ownership claim during the proceedings.

The appeal was allowed by way of remand, and the Adjudicating authority was instructed to decide the issue in denovo proceedings based on the observations made. The appellant was advised not to seek a refund of the pre-deposit until the case was decided in the remand proceedings.