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TMI Blog2013 (9) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ant company was prejudiced in the enquiry due to the absence of Mr. Niranjan Puthran - Further, neither had the appellant pointed out how the absence of Mr. Niranjan Puthran during the enquiry proceeding has occasioned failure of justice. The CHA licence which had been revoked belongs to the appellant - The appellant appeared before the Enquiry Officer through an advocate - in the absence of its Director Mr. Niranjan Puthran (being in Jail) it was not possible for it to properly represent its case and the same resulted in prejudice to the appellant - The appellant sought cross examination of all persons save and except Mr. Niranjan Puthran - the statement of Mr. Niranjan Puthran which in the case was against the appellant was accepted by the appellant as the same was never challenged by the appellant. The issue of breach of natural justice was an after thought particularly so in views of the fact that the appellant took up this stand only after passing of the final order - It was not the case of the appellant that it was not given proper notice or that it could not appear during the proceeding leading to miscarriage of justice - Moreover, it must be pointed out that even befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 for the purposes of clearance from the Customs. 5) Consequent to the above seizure, DRI conducted investigation and statements were recorded of various persons involved in seeking clearance of the above two consignments on 20 February 2006. The Director of the appellant, Mr. Niranjan Puthran had admitted in his statement recorded by the DRI that the consignments of analog watch movements had been misdeclared in the import documents as plastic parts of toys. He further admitted that he knew Mr. Umesh Shetty the importer of both the consignments and that he had knowledge of the mis declaration of the imported goods in the bills of entry. Moreover, the Import Export Code (IEC code) required for import was also made available by him to importer Mr. Umesh Shetty after obtaining the same from Mr. Yogesh Merchant for consideration. Further, Mr. Niranjan Puthran also admitted that 11 more consignments had been imported by him in similar manner for Mr. Umesh Shetty and the appellant was paid Rs.1 lakh per consignment for its above services. The aforesaid fact of mis declaration was also corroborated by statement of Mr. Umesh Shetty (the importer), Mr. Himanshu Ajmera and Mr. Ketan Popa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the charges against the appellant are not proved. Thereafter, on 5 October 2007, the appellant attended the personal hearing granted by the Commissioner of Customs and filed its written submission seeking that the Enquiry Officer's report dated 18 June 2007 be not accepted. 9) However, on 8 October 2007, the Commissioner of Customs (General) by his order upheld the Enquiry Officer's finding with regard to two out of the three articles of charge i.e. violation of Regulation 13(d) and 13(e) of CHALR. However, the charge made in respect of Regulation 20(c) of CHALR was dropped as it was merely a provision enabling the Commissioner to take disciplinary action against the charged CHA. 10) Being aggrieved the appellant preferred an appeal to the Tribunal. The Tribunal by its order dated 24 December 2007 dismissed the appellant's appeal. In its order dated 24 December 2007 the Tribunal inter alia held that there was a violation of Regulation 13(d) of the CHALR as it was the obligation of of the appellant as a CHA to bring to the notice of the Customs Department any non compliance with the provisions of the Act by importer and also advise him to comply with the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, leading to the final order dated 24 December 2007. 12) The grievance of the appellant to the final order dated 27 December 2007 and the order dated 19 September 2008 on rectification application is that when the Enquiry Officer conducted the enquiry, Shri. PuthranDirector of the appellant was under going COFEPOSA detention i. e. during the period 31 August 2006 to 8 August 2007. The enquiry proceeding commenced on 19 October 2006 and the Enquiry Officer's report was rendered on 18 June 2007. Therefore, during the entire period when the enquiry officer conducted the enquiry into the appellant's case its Director Mr. Niranjan Puthran was not able to instruct the appellant's Advocate and/or make his submission before the Enquiry Officer. Therefore, it is submitted that there was breach of principles of natural justice as the person conversant with the facts of the case was only Mr. Niranjan Puthran though he who was one of the six Directors of the appellant. It is submitted by Mr. Anil Balani learned Advocate for the appellant that breach of natural justice has resulted in gross injustice as the right to livelihood of the appellant's Director has been affected. Therefore, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Director Mr. Niranjan Puthran should come from the appellant through its other Directors, which is not so in this case. Moreover, if this was the case, the plea would have been raised at the very beginning of the enquiry proceedings. It is therefore, clear that the issue of breach of natural justice is an after thought particularly so in views of the fact that the appellant took up this stand only after passing of the final order dated 24 December 2007. It is not the case of the appellant that it was not given proper notice or that it could not appear during the proceeding leading to miscarriage of justice. Moreover, it must be pointed out that even before us the appellant has not indicated how the availability of Mr. Niranjan Puthran would have resulted into the charges against the appellant being dropped. In case parties are allowed to raise fresh plea after conclusion of original and first appellate proceeding, no dispute would even come to an end. 15) We see no reason to entertain the proposed question of law as the present proceedings were against the appellant and not against Mr. Niranjan Puthran. In the circumstances he has no independent right to be heard before pass ..... 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