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TMI Blog1985 (7) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 14,74,200/-. The said shipping bill was completed by the Export Department of the Customs House on the basis of the declaration made therein and also on the basis of the shipping documents signed by Shri S.K. Daga, Director of the appellants mill. In order to complete the process of export, the following examination order was made on the bill: Please inspect lot. Check marks and Nos. Examine 40 packages after selection. Check description and net weight. Also draw one rep. sample for SASMIRA T.C. and in duplicate for test by Dy. C.C. to test composition. Follow S.O. 6614, dt. 30-8-1977 as amended. 3. On information that the appellants were misdeclaring the description, blend composition and value of the synthetic yarn exported by them under DEEC scheme, the Intelligence Branch of the Customs House, Bombay after registering the case took possession of the shipping bill and examined the goods covered by the shipping bill. The samples drawn from the export consignments were sent for test to the Customs House Laboratory and also to Central Testing Laboratory of Textile Committee, Bombay. The test carried out by the Central Testing Laboratory of Textile Committee disclosed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll but allowed redemption on payment of a fine of Rs. 2,25,000/- in lieu of confiscation. He had also imposed a personal penalty of Rs. 1,20,000/- under Section 112 and another sum of Rs. 1,20,000/- under Section 114 of the Customs Act. Feeling aggrieved by the order as stated earlier the appellants preferred this appeal. 8. During the hearing of this appeal Shri Rajagopal, the appellants learned Advocate contended that the adjudication order is wholly illegal inasmuch as it was passed in gross violation of the principles of natural justice. He further contended that the Adjudicating authority disregarded the provisions of the Act. He had also contended that the Adjudicating authority deliberately, wilfully and with ulterior motive suppressed material facts which were patently favourable to the appellants. This amounts to a mala fide action on the part of the Adjudicating authority and as such the order of the Adjudicating authority became ab initio void. Elaborating his contention Shri Rajagopal urged that in the show cause notice among other things it was stated that the copies of the two test reports of two laboratories were annexed but the copies annexed were of the same lab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a v. Collector of Customs, Calcutta - 1983 E.L.T. page 1790 (CEGAT). 11. We have carefully considered the submissions made on both sides. We have also perused the records of this case. The two questions that appropriately arise for consideration are (1) whether there had been a denial of the principles of natural justice ? and (2) whether the matter merits remand for de novo consideration or mere setting aside of the adjudication order? The Additional Collector had passed an order of confiscation of the offended goods and had also imposed penalties both under Section 112 and under Section 114 of the Customs Act. In his order he had stated that the decision was ex parte. In the whole of his order he nowhere stated that a date was fixed for personal hearing and that the appellants failed to avail the opportunity of the personal hearing granted to them. The perusal of his order would go to show that he proceeded to pass the order of confiscation and imposition of penalties because the appellants did not reply to the show cause notice issued to them. On going through the order of the Additional Collector we get an impression that he did not make any distinction between the evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the facts of the present case. 14. The shipping bill was dated 26-7-1983. Show cause notice was issued on 5-3-1984. The order of adjudication was dated 25-9-1984 communicated on 17-10-1984. The appellants filed their appeal on 15-1-1985. It is being disposed of this date. In the decision relied upon by Shri Rajagopal, the President of the Tribunal, his Lordship Shri Justice F.S. Gill with whom the other two members concurred held that even though there may be a piece of important evidence, yet it would not be feasible to relegate the parties after a lapse of three decades to a stage as it was in 1956. His Lordship further observed that tor non-feasance, or mis-feasance, the Department must bear the legal consequences. It is thus seen that the refusal to the remand of the case was on the ground that the matter came up before the Bench after a lapse of three decades. The perusal of the order also goes to show that the Bench considered the case on merits. In the instant case the appeal is heard even before the expiry of a year from the date of issue of adjudication order and six months from the date of filing of the appeal. Therefore, the ratio of the decision of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicable to the adjudication proceedings. All the same, the fundamental principles of Criminal Procedure Code are applicable. 17. Having regard to the procedure adopted by the Adjudicating authorities, it is of fundamental importance that the person sought to be penalised should be informed before hand, the statements of the witnesses and the documents and other materials which the department relies upon in the adjudication. Then only it could be said, that a person concerned had a fair and reasonable opportunity to defend himself against the proposed action. It is also fundamental that no material of which the person affected had prior notice could be relied upon. It is, therefore, necessary that the department should furnish the copies of the statements of the witnesses and documents to the person proceeded against. If for any valid reasons, the copies cannot be supplied, the affected person should have an opportunity to inspect the documents and to take extracts of the same. He should also be given reasonable time to make representations against the proposed action. 18. In the instant case, in spite of the request for extension of time to reply, the request was neither g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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