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TMI Blog2011 (2) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the learned counsel is that MEPL was not permitted to cross-examine the Chemists of SASMIRA who analyzed the samples. It is on record that they offered to furnish the names and other particulars of the Chemists, which apparently they have not been able to do. Nevertheless, it is open to them to furnish the names and other particulars of the witnesses to the Commissioner and also state valid reason why they should be cross-examined. Thus sufficient reasons for remand of the case. - C/1075, 1220, 1241 to 1246/09 - - - Dated:- 25-2-2011 - Mr. P.G. Chacko, Mr. Sahab Singh, JJ. Appellant Represented by: Mr. Anil Balani, Mr. A.V. Naik, Miss Lakshmi Menon, Mr. G.B. Yadav, Advocates) Respondent (Represented by: Mr. S.S. Katiyar, SDR) Per: P.G. Chacko 1. The appellants have prayed for waiver of pre-deposit and stay of recovery in respect of the amounts adjudged against them. After examining the records and hearing both sides, we are convinced of the need to set aside the learned Commissioner's order and direct de novo adjudication in accordance with law and the principles of natural justice. Accordingly, after dispensing with pre-deposit, we take up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export goods contained a certain percentage of PFY as against 'nil' PFY content declared in Shipping Bills. In few cases, the PFY content in the sample was found to be lower than what was declared in the Shipping Bill. In other cases, it was found that the PFY content in the sample was higher than what was declared in the Shipping Bills. Upon receipt of these test reports from SASMIRA, the Customs authorities held further investigations including scrutiny of documents, and statements of some Directors of MEPL and Customs House Agents were recorded under Section 108 of the Customs Act. One or two persons, who were associated one way or another with the exporter-company, admitted misdeclaration of composition of the exported goods. After completing the investigations, the Commissioner of Customs (Preventive), New Customs House, Mumbai, issued show-cause notice dated 10.3.1997 to the appellants and others for (a) recovery of duty on raw materials imported under the subject advance licences; (b) confiscation of such materials; (c) confiscation of the exported fabrics and (d) imposition of penalties. One of the noticees, namely, Shri Kabirdas Kewalram Mangtani expired during the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy (SASMIRA) after nearly three years, that the request for re-test of the samples was rejected without valid reasons, that the Chemists/Analysts of SASMIRA were not allowed to be cross-examined, that copies of the relevant test memos were not supplied, that no reason whatsoever was stated by the Commissioner for rejecting the request made by MEPL and that a final order was passed hurriedly by the Commissioner even before communicating the decision on the said request. It is also submitted that no opportunity of being personally heard was given to the appellants after rejecting the above request and before passing the final order. In this manner, according to the learned counsel, natural justice was denied to the appellants. 7. The learned counsel for M/s Banaswara Syntex Ltd submits that nothing was brought out in the show-cause notice against her client for invoking the extended period of limitation for recovery of duty or for imposing penalty on them under Section 114A of the Act. There is no finding in the Commissioner's order to support the demand of duty or penalty against M/s Banaswara Syntex Ltd (transferees of advance licence No. 313995 dated 20.5.1993). In this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHA under Section 112 (a) as well despite the fact that they had nothing to do with any import. There is a serious grievance against the demand of duty raised on the CHA also. 9. We have heard the learned SDR and considered his submissions also. 10. The learned SDR has mainly reiterated the findings of the Commissioner. It is particularly submitted that MEPL admitted their offence of misdeclaration in their statements given under Section 108 of the Customs Act and, therefore, all objections raised on behalf of the appellant are irrelevant. Yet another submission of the learned SDR is that the objections raised by the appellant with regard to the test reports are untenable. It is submitted that the sampling of the goods for test was done in their presence and in accordance with the established procedure. Nothing was done behind their back. The analysis of the samples was undertaken by approved agency. The results of analysis are scientific truths which are not deniable. The objection raised on behalf of MEPL that the test reports should be rejected on the ground of delay is also untenable inasmuch as they themselves asked for retest of the same samples. According to the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferees of advance licences also. The learned Commissioner upheld the above allegations and ordered for recovery of duties from the transferees by invoking the extended period of limitation. At the same time, he categorically held that the transferees did not have any role in the manipulation of export documents. A glaring contradiction is inbuilt in these findings of the Commissioner, which apparently has resulted from non-application of mind. 12. The denial of natural justice to the appellants cannot be underplayed. MEPL requested for retest of samples and also for opportunity to cross-examine the Chemists/Analysts who tested/analyzed the said samples. These requests were made in the reply to the show-cause notice and the same was reiterated before the adjudicating authority on 19.8.09 and 26.8.09. The impugned order indicates that these requests were turned down on 26.8.09 itself. MEPL has claimed that the Commissioner's decision on their requests was communicated to them only on 1.9.09. Anyway, the impugned order does not indicate that the Commissioner's decision dated 26.8.09 was instantly communicated to MEPL's advocate. Apparently, his letter dated 26.8.09 was sent to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho analyzed the samples. It is on record that they offered to furnish the names and other particulars of the Chemists, which apparently they have not been able to do. Nevertheless, it is open to them to furnish the names and other particulars of the witnesses to the Commissioner and also state valid reason why they should be cross-examined. 14. We have stated sufficient reasons for remand of the case. The impugned order is set aside and all the appeals, barring appeal C/1242/09, are allowed by way of remand with a request to the Commissioner of Customs for taking fresh decision on all the issues in accordance with law after giving the parties a reasonable opportunity of adducing evidence and of being personally heard. It is made clear that this opportunity to adduce evidence will include an opportunity to cross-examine any witness if MEPL can make out a valid case before the Commissioner for such cross-examination. Considering the fact that this case is being sent back to the Commissioner in a third round, we would like de novo adjudication to be completed within a reasonable time, at any rate, within six months from the date of receipt of a certified copy of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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