2024 (10) TMI 1470 - HC - Customs

Validity of Order in Original imposing penalties upon the Petitioner under Sections 112 (b) and 114AA of the Customs Act - allegation of denial of the opportunity to cross-examine the persons given statements in the adjudication proceedings - HELD THAT - In the case of Manjeet Singh vs Union of India and others 2022 (10) TMI 893 - BOMBAY HIGH COURT a Co-ordinate Bench of this Court in similar circumstances declined to deviate from the self-imposed restriction regarding exhaustion of alternate remedies. Even in that case, the complaint was about not granting cross-examination opportunities. The Co-ordinate Bench relied upon the decision of this Court in Haresh Nagindas Vora 2017 (6) TMI 964 - BOMBAY HIGH COURT to hold that the Petitioner cannot easily bypass the statutory remedy of appeal and insist upon the matter being considered on merits in the Writ Petition. From the perusal of the impugned order, at least prima facie, we find that this is not a case of no notice or no opportunity to defend the allegations in the show cause notice. At the highest, this is a case where the allegation is of insufficient opportunity because of the denial of cross-examination of some of the persons who made statements in the adjudication proceedings. Therefore, prima facie proof of prejudice may be necessary. All these are matters that can be looked into by the Appellate Authority. We decline to entertain this Writ Petition but leave it open to the Petitioner to pursue the remedy of appeal by complying with the mandatory conditions prescribed under the law.

Issues: Challenge to Order in Original imposing penalties under Customs Act, 1962; Violation of principles of natural justice due to denial of opportunity to cross-examine; Petitioner's inability to deposit mandatory amount for appeal; Authority's discretion in reducing pre-deposit amount; Applicability of previous judgments on similar issues.

The High Court of Bombay heard a petition challenging an Order in Original that imposed penalties on the Petitioner under Sections 112 (b) and 114AA of the Customs Act, 1962. The Petitioner had filed a statutory appeal before the Commissioner of Customs (Appeals) and then a Writ Petition seeking relief from the mandatory deposit requirement for the appeal. The Writ Petition was withdrawn, and a new petition was filed alleging a violation of natural justice due to the denial of the opportunity to cross-examine certain individuals involved in the case. The Respondent argued that there were other pieces of evidence establishing the Petitioner's complicity, even if the statements were excluded. The Court noted that the Petitioner had the remedy of appeal and declined to deviate from the usual rule of exhausting alternate remedies. The Court cited a previous case where a similar issue was dealt with, emphasizing the importance of following statutory remedies before seeking relief through a Writ Petition.

In response to the Petitioner's argument that they could not deposit the required amount for the appeal, the Court referred to a Supreme Court case stating that the High Court does not have the power to waive the pre-deposit entirely and cannot go against the statutory provision. The Court highlighted that the Petitioner's attempt to bypass the deposit requirement through different avenues was impermissible. The Court reiterated that the statutory requirement of pre-deposit must be followed, as per the law.

Regarding the issue of denial of the opportunity to cross-examine, the Court examined the impugned order and found that there was no case of "no notice" or no opportunity to defend against the allegations. The Court noted that the denial of cross-examination could be a case of insufficient opportunity, which could be addressed in the appeal process. The Court emphasized that all matters related to the denial of cross-examination and any resulting prejudice could be examined by the Appellate Authority during the appeal process. Ultimately, the Court dismissed the Writ Petition but allowed the Petitioner to pursue the remedy of appeal by complying with the mandatory conditions prescribed by law. The Court clarified that its decision did not reflect on the merits of the case and kept all contentions open for further consideration.

In conclusion, the High Court of Bombay dismissed the Writ Petition, emphasizing the importance of following statutory remedies and complying with mandatory conditions for appeals. The Court highlighted the significance of addressing issues like denial of cross-examination through the appropriate appellate channels rather than seeking relief directly through a Writ Petition.

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