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TMI Blog1987 (11) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... of A.S.I, certified that 7 of them were antiquities. Investigation was then taken up and statements were recorded. Show cause notice dated 22-9-1980 was issued to the appellants as to why the entire consignment should not be confiscated under Section 113(d) of the Customs Act and why penalty should not be imposed under Section 114 of the Customs Act. On receipt of reply adjudication followed. Under order dated 26-3-1984 the Additional Collector of Customs, Delhi Airport ordered confiscation, under Section 113(d)of the Customs Act, of all the nine items declared as antiquities by the Director General and of other items, together with the two boxes, under Section 118(h) of the Customs Act. He imposed a penalty of Rs. 25,000/- on the appellants under Section 113 of the Customs Act. This appeal is against the said order. 2. We have heard Shri M. Venkatraman, Advocate for the appellants and Shri Rakesh Bhatia for the Department. 3. Of the various items presented in the two boxes for export out of India 9 have been certified by the Director General of A.S.I. to be antiquities. The order of the Additional Collector is based on this finding. The case for the Department is that under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine the Director General on this question during the adjudication by the Additional Collector. The appellants relied on the evidence produced by them during the adjudication to establish that none of the 9 items certified by the Director General to be antiquities was in fact an antiquity. It is their further contention that they were denied an opportunity to cross-examine the Director General (on whose opinion only the Additional Collector relied in passing his order) and thus there has been a gross violation of principles of natural justice in the adjudication proceedings and for this reason itself the order is liable to be set aside. Since this argument, if accepted, would itself suffice for the disposal of the appeal we are taking up this for consideration in the first instance. 4. The following extracts from the order of the Additional Collector would make it clear that he was relying mainly, in fact wholly, on the opinion of the Director General in concluding that the 9 objects in question were antiquities. (i) The contents of the said two packages were declared as Ivory Handicrafts. Such a declaration by itself could give no idea whether any of the ivory handicrafts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be for the Department to establish that the two objects were antiquities. 6. It appears from the order of the Additional Collector that a request had been sent to the Director General of A.S.I. (as required by the appellants) to appear before the Additional Collector for purpose of cross-examination. The response thereto appears to have been a letter dated 20-7-1981 drawing the attention of the Additional Collector to Section 24 of Act 52 of 1972 and to state that since thereunder the opinion of the Director General had been made final it was improper to require him to appear for cross examination. Accepting the said submission the Additional Collector had disallowed the request of the Counsel for cross-examination of the Director General. The contention of Shri Venkataraman for the appellants is that such disallowance of cross-examination of the person (on whose opinion only the conclusion as to whether the 9 objects were antiquities or not was arrived at) was wholly improper, and that this denial has resulted in grave injustice to the appellants. On the other hand, Shri Bhatia for the Department supported the order of the Additional Collector and contended that when un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical, but should be flexible yet firm in this jurisdiction. It is therefore clear that whether an opportunity of cross-examination is to be given or not would depend upon the circumstances of each case and the statute under which the hearing is held. 9. We are aware of several cases where the right of cross-examination was denied but yet the court held that the said denial did not amount to any denial of natural justice. For instance in Kanungo and Co. v. Collector of Customs - 1983 (13) E.L.T. 1486 (S.C.) AIR 1972 S.C. 2136, the Court held that the denial of the right to cross-examine the informants, on whose information action was being taken against the smuggler, would not amount to a denial of natural justice since the identity of the informants was to kept secret to protect such source. Again in Gurbachan Singh (AIR 1952 S.C. 221) it was held that denial of cross-examination of the witness on whose information the order for externment had been passed would not violate natural justice since the witnesses would not like to come in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statute. This view finds support from Nehru Motor Transport Co-operative Society Ltd. v. State of Rajasthan, (1964) 1 SCR 220 : (AIR 1963 S.C. 1098). In which also the argument raised was that there could be no effective process without a provision for coercive process compelling attendance of witnesses and production of documents. It was pointed out in that case that the Rajasthan Rules did not provide for compelling the attendance of witnesses and that it was enough if the authority took evidence of witnesses whom the objector produced before it. It was also remarked that the authority might help the objector to secure their attendance by issue of summonses, though in the absence of any provision in the law, the witnesses might or might not appear in answer thereto. But then the question arises whether an order of the State Government rejecting a prayer for issuance of summons or letters of request would be illegal. This question was answered in the negative by Wanchoo, J., in the Capital Multi-purpose case (AIR 1967 S.C. 1815) (supra) with the following observations : Further, reliance in this connection is placed on the observation of this Court in Nehru Motor Transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainly have civil consequences so far as the appellants are concerned since if the opinion was to be given that they were antiquities there was every likelihood, in fact a certainty, that the objects would be confiscated, as has been done in the present case. Taking into consideration the nature of the objects (antiquities) with reference to which the Director General of A.S.I. is to come to a decision under the Act, the objects may on occasions be of considerable financial value, even running into lakhs of rupees on occasions. The question as to the need for an enquiry, with an opportunity for the person likely to be aggrieved by the result to present his version, has been considered by the Supreme Court in the case of Swadeshi Cotton Mills (AIR 981 S.C. 818) where it observed :- In short, the general principle - as distinguished from an absolute rule of uniform application - seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Convers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the present case as to whether, in the above circumstances, the right of cross-examination of the Director General ought to have been granted or declined. 15. We may look at the question from another angle also. When the adjudication by the Additional Collector was held the appellants were only aware that the Director General had given a particular opinion but were not even aware as to on what material the Director Generar came to the said conclusion. No doubt Section 24 of the Act 52 of 1972 declares that the opinion of the Director General shall be final for the purposes of the said Act. It naturally contains no provisions either for allowing or disallowing cross-examination of the Director General. In the absence of reasons having been furnished we may even visualize a situation when on being subjected to cross-examination and on being made aware of the necessary facts as to the time and date of manufacture of the objects in question, the Director General may conceivably alter his earlier opinion and accept that the objects are not antiquities. Not that this must necessarily happen but that it may conceivably happen. In that event, it is this later opinion of the Directo ..... 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