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TMI Blog2014 (12) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... BAD) observed that giving a choice of three dates for personal hearing in one letter and seeking of adjournment by the appellant by one month, would not amount to granting of adjournments three times. - Principles of natural justice have been violated by the adjudicating authority, which is in favour of the applicant and therefore, there is no need to look into the other two issues. - Matter remanded back the original adjudicating authority - Decided in favour of assessee. - C/670/2012 - Final Order No. 20731/2014 - Dated:- 24-12-2013 - Shri B.S.V. Murthy, Member (T) and Ashok Jindal, Member (J) Shri Harishankar, Advocate, for the Appellant. Shri A.K. Nigam, Additional Commissioner (AR), for the Respondent. ORDER The appellant is seeking waiver of pre-deposit of penalty of ₹ 2 crores and stay against recovery of the same during pendency of the appeal. 2. The brief facts of the case are as under : M/s S.L.N. Oversees Traders whose Proprietor Shri Suresh Prabhu exported 21 consignments of ladies garments claiming benefit of DFIA during the period from August, 2007 to May, 2009 through New Mangalore Port to Dubai. The investigation in respect of thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following evidence and facts presented before us, we consider that the appellant has not been able to make out a prima facie case in his favour about his involvement with undervaluation of exported goods - (a) The statement of Shri Suresh Prabhu implicating Shri Imtiaz Ahmed has given several facts which could have been given only by a person who was aware of the transactions and the nature of transactions which could not have been unearthed by any other means; (b) The amount deposited in Bank was immediately withdrawn and disbursed. Shri Suresh Prabhu stated that it was disbursed to various persons instead of using for payment of fabrics/garments purchased for export; (c) The sellers of the goods exported has also admitted that they had sold cheap garments and not the ones which have been claimed to have been exported; (d) Shri Suresh Prabhu agreed that these goods were in turn exported to foreign country and only cheap fabrics were sold. One of his statements was recorded in the presence of Prison officials and after four months from the date of recording of his first statement which would show that the statement was voluntarily and reliable; (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his letter dated 30-10-2011 on the ground that the Counsel is out of station, therefore, the matter was fixed for personal hearing on 16-11-2011 or alternatively on 18-11-2011. The Advocate again sought further adjournment vide his letter dated 15-11-2011 but no further adjournment was given. Prima facie it seems that the applicant was not given an opportunity of being heard which is in violation of principle of natural justice. 11. In the case of C.K. Kunhammed (supra) the Tribunal has held that - 6. I have carefully considered the submissions made before me. So far as appellant C.K. Kunhammed is concerned, admittedly he was abroad not only at the alleged time of commission of offence but also continued to be there even later to the commission of offence and till date. Assuming for the purpose of argument that appellant C.K. Kunhammed had entrusted the gold biscuits in a foreign country, Doha that would not be an offence coming within the mischief of the Customs Act, 1962. The provisions of the Act extend only to the whole of India and not beyond India. Apart from it, the Collector of Customs Central Excise, Cochin also has no jurisdiction under law to try a person in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person only when the stated ground is proved. For example, in those cases where the person who made the statement is dead, there should be sufficient proof that he is dead. In case, where a person cannot be found, the authority would have to form an opinion, based on some material on record, that such a person cannot be found. It would not be mere ipse dixit of the officer. In case, cogent material is not there to arrive at such a finding, the persons against whom the statement of such a person is relied upon can always challenge the opinion of the authority by preferring appeal to the higher authority, which appeal is statutorily available. Same yardsticks would apply to other grounds. If the quasi judicial authority opines that a person is incapable of giving evidence, formation of such an opinion has also to be predicataed on proper material on record, which could be in the form of mental or physical disability of such a person. 29. Thus, when we examine the provision as to whether this provision confers unguided powers or not, the conclusion is irresistible, namely, the provision is not uncanalised or uncontrolled and does not confer arbitrary powers upon the quasi judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular ground, as stipulated in the said Section, exists and is established; (iii) such an opinion has to be supported with reasons; (iv) before arriving at this opinion, the authority would give opportunity to the affected party to make submissions on the available material on the basis of which the authority intends to arrive at the said opinion; and (v) it is always open to the affected party to challenge the invocation of provisions of Section 9D of the Act in a particular case by filing statutory appeal, which provides for judicial review. 12.2 Therefore, as per the decision of J K Cigarettes Ltd. (supra), in the case in hand the adjudicating authority has not formed opinion on the basis of the material on record and there is no supporting reasons to believe that the statement of Shri Suresh Prabhu is correct or not. Therefore, prima facie as per Section 138(b) of the Customs Act, 1962, the statements of co-noticees cannot be relied upon and the case has been made out against the applicant only on the basis of the statement of the co-noticees. 12.3 Further, as per the decision in the case of C.K. Kunhammed (supra) also, as the applicant was not in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority erroneously proceeded on the basis that in this case three adjournments were granted. In this context, he relied upon the decisions of the Tribunal in the following cases (a) Meenakshi Associates (P) Ltd. v. CCE, Noida - 2009 (245) E.L.T. 362 (Tri.-Del.) (b) Afloat Textiles (P) Ltd. v. CCE. Vapi - 2007 (215) E.L.T. 198 (Tri.-Ahmd.) 17. The learned AR on behalf of the Revenue submits that on plain reading of the proviso to Section 122A(2) of the Customs Act, it is clear that the adjournments shall be granted not more than three times. In the present case, three adjournments were given and therefore the adjudicating authority rightly proceeded without giving any further opportunity. He further submits that the proviso to sub-section (2) of Section 122A of the Customs Act, 1962 permitted three times adjournment and one notice of hearing for two dates is immaterial. He fairly submits that if the Bench is inclined to pass an order on this very issue, in favour of the applicant then matter should be decided by the Division Bench at the earliest. 18. After hearing both sides and on perusal of the records, I find that it is appropriate to reproduce Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and the applicant requested for adjournment by letter dated 13-10-2013. Thereafter as contended by the learned advocate, personal hearing notice was issued by fixing the date at 16-11-2011 or alternatively at 18-11-2011 which would be taken as one opportunity. The Tribunal in the case of Afloat Textiles (P) Ltd., (supra) observed that giving a choice of three dates for personal hearing in one letter and seeking of adjournment by the appellant by one month, would not amount to granting of adjournments three times. The relevant portion of the said decision is reproduced below. 2. We have seen letter dated 15-9-2006 issued from the office of the Commissioner fixing dates on all three days of hearing as on 10-10-2006, 17-10-2006 and 31-10-2006. The adjudicating authority has observed that in terms of proviso to Section 33A of the Central Excise Act, 1944, the adjournment cannot be granted more than three times. Inasmuch as the letter of hearing mentioned three dates, he considered the appellant s request is to be taken as the adjournment was sought three times. We are afraid that the above approach of the Commissioner is not in accordance with the right interpretation of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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