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TMI Blog2014 (1) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... id” and that as against prevailing price of 340 U.S. $ per M.T. for palm fatty acid distillate, the suppliers were declaring the price as 180 U.S. $ per M.T. and the balance was being paid to the suppliers by the importers in advance through unofficial channels - since the appellant had given reasons for seeking cross- examination of Shri Rakesh Kumar, the same cannot be denied just on the ground that he is a co-noticee and cannot be compelled to give evidence which will incriminate himself - Decided in favour of assessee. - C/479 and 491/2010-SM(BR) - Final Order Nos. 167-168/2012-SM(BR)(PB) - Dated:- 5-3-2012 - Shri Rakesh Kumar, J. Shri Ajay Agarwal, Advocate, for the Appellant. Mrs. R. Jagdev, SDR, for the Respondent. ORD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected their requests for cross-examination. Against these decisions of the Commissioner, these appeals have been filed. 2. Heard both the sides. 2.1 Shri Ajay Agarwal, Advocate, the learned Counsel for the appellants, pleaded that appeal against the Commissioner s decision as Adjudicating Authority disallowing the cross-examination lies before the Tribunal in terms of the provisions of Sections 129A(1) of Customs Act, 1962, that the cross-examination of Shri Rakesh Kumar has been disallowed on the ground that he is a co-noticee, that this issue is no longer res integra as the Tribunal in the cases of Anil Pannalal Sarogi v. CC (Import), Mumbai-II - 2009 (241) E.L.T. 219 (Tri.-Mumbai) and Sai Kripa Exim (P) Ltd. v. CC, Hyderabad report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon the Chemical Examiner s report in support of the allegation that the goods are palm fatty acid distillate and their description has been misdeclared, the cross-examination of the Chemical Examiner should be allowed, that in view of this, the impugned decisions of the Commissioner disallowing cross-examination are not correct. 2.2 Mrs. R. Jagdev, the learned Senior Departmental Representative, in her written submissions and as well as oral submissions pleaded that the letters of the Commissioner disallowing cross-examination cannot be treated as orders passed by him as Adjudicating Authority and, hence, the same are not appealable orders, that appeal to Tribunal under Section 129A(1) of Customs Act, 1962 lies only against order or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported, the same in order misdeclared its value was being mis-declaring as mixed fatty acid and that as against prevailing price of 340 U.S. $ per M.T. for palm fatty acid distillate, the suppliers were declaring the price as 180 U.S. $ per M.T. and the balance was being paid to the suppliers by the importers in advance through unofficial channels. This statement of the indenter Shri Rakesh Kumar which implicates the appellants, has been relied upon by the department as one of the evidence. Another evidence relied upon by the department against the appellants is the report of the Chemical Examiner. 6. Hon ble Allahabad High Court in the case of C.C.E., Meerut-I v. Parmarth Iron Pvt. Ltd. reported in 2010 (260) E.L.T. 514 (All.), relyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. 7. In this case, since the appellant had given reasons for seeking cross- examination of Shri Rakesh Kumar, the same cannot be denied just on the ground that he is a co-noticee and cannot be compelled to give evidence which will incriminate himself, as the Tribunal in the case of Anil Pannalal Sarogi v. C.C. (Import), Mumbai-II (supra) and Sai Kripa Exim (P) Ltd. v. CC, Hyderabad (supra) has held that the cross-examination of co-noticee if requested for certain reasons cannot be refused. In view of this, the Commissioner s order refusing the cross-examination of Shri Rakesh Kumar is not correct. 8. As regards the appellant s plea for permitting the cross-examination of Chemical Examiner, I find that when the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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