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TMI Blog2012 (11) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... er the investigating officers, whose cross-examination was sought for by the appellant, never presented themselves for cross examination during the inquiry proceedings, thereby denying the appellant a reasonable opportunity to prove his case - charges have been proved does not stand any legal scrutiny and is perverse and bad in law – In favor of assessee - C/760/11 - S/738/2012/CSTB/C-I - Dated:- 22-5-2012 - Ashok Jindal, P R Chandrasekharan, JJ. For Appellant: Shri.V N Ansurkar, Adv. For Respondent: Shri. A K Prabhakar, Supdt. (AR), Per: P. R. Chandrasekharan: 1. This appeal and stay application are directed against the order-in-original No.56/2011/CAC/CC(G)/SLM/CHA (Admn) dated 18/08/2011 passed by Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in the process of completion of formalities as per the standard operating procedure. In the meanwhile, the Directorate of Revenue Intelligence detained the consignments and the LEO was never issued. During the course of investigation, the DRI recorded a statement of Shri Mukesh Thakkar, Proprietor of the appellant firm on 19/08/2009 wherein the appellant under duress admitted that the goods under export were not basmati rice and he had prior knowledge of the same. The appellant was arrested and produced before the Special Magistrate at CMM Court, Mumbai on 20/08/2009 wherein the appellant retracted the statement recorded by DRI alleging that the same was recorded under physical torture and duress. On 27/08/2009, the DRI again recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due diligence in ascertaining the correctness of information; and violation of Regulation 13 (n) alleging non-discharge of duty with utmost speed and efficiency. 2.4 Thereafter, inquiry proceedings were conducted against the appellants by the Dy. Commissioner of Customs. The department introduced four witnesses and recorded their testimony during the course inquiry proceedings. These witnesses are one Shri Vijay Mange, Proprietor of M/s.Shree Gurukrupa Shipping Agency, Shri Pradeep Mange, employee of M/s.Shree Gurukrupa Shipping Agency, Shri Suresh Kataria of M/s.Rishi Ice Cold Storage, Turbhe and Shri Santosh Chawla of M/s.Chawla Trading Co. Nagpur. The appellants sought cross examination of the DRI officers who had recorded the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t before the DRI on 19/08/2009 is true and correct. The reliability or the veracity of the inculpatory statement of the appellant is suspect as the same has been obtained under duress. The appellant had also retracted the inculpatory statement on 20/08/2009 before the Magistrate. Further, the appellant under the RTI act obtained a copy of the examination report given by the AGMARK laboratory in respect of shipping bill No.7557073 dated 30/07/2009 and as per the certificate the product covered by the shipping bill is raw milled basmati rice. This clearly shows that there has been no mis-declaration by the appellant in the concerned shipping bill. This report of the AGMARK authorities was never brought on record either by the investigating te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings in spite of notice. Thus, the principles of natural justice have been violated and the entire inquiry proceedings are vitiated. 3.2 In the light of these submissions, the Ld. Advocate says that the findings and conclusions drawn in the inquiry proceedings and in the impugned order have not been substantiated and, therefore, the revocation of CHA licence of the appellant is bad in law and must be set aside. 4. The Ld. AR appearing for the Revenue reiterates the findings of the adjudicating authority. 5. We have carefully considered the rival submissions. We are of the view that the appeal itself can be disposed of at this stage and hence, take up the same for consideration. 5.1 The basis for the investigation is that the CHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In respect of the other shipping bills, the appellant had filed the shipping bills after receiving the APEDA certificate stating that the goods were basmati rice and based on the APEDA certificate he has made the entry in the shipping bill as basmati rice. Therefore, the appellant CHA cannot be blamed for making any false declaration in the shipping bills, since his declaration is based on the certificate issued by the competent authorities. As regards the violation of Regulation 13(b), the allegation is that the appellant conducted the business not through his employees but by engaging somebody else. In the instant case from the records, it is seen that the shipping bills and other documents have been duly signed by the appellant and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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