9911796707
TMI Blog2018 (5) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Article 226 of the Constitution of India - the question of violation of principles of natural justice as raised in this case, cannot be decided without going into the merits of the matter, more particularly, without appreciation of the materials placed before the Adjudicating Authority and hence, the contention of the writ petitioner that, in this case, there is a clear-cut violation of principles of natural justice, cannot be accepted. Maintainability of petition - alternative remedy - Held that: - It is well settled that in a case involving fiscal nature, availing of statutory appellate remedy has to be first exhausted and hence, the party cannot come to this Court directly and file a petition under Article 226 of the Constitution of India - the filing of the very writ petition itself against the order of the Adjudicating Authority is not maintainable, as the appellant/writ petitioner is having statutory and efficacious appellate remedy before the appellate Tribunal, in this case, CESTAT. Appeal disposed off. - W.A(MD)NO.705 OF 2014, M.P(MD)No.1 of 2014 - - - Dated:- 25-4-2018 - K. Ravichandrabaabu And T. Krishnavalli, JJ. For the Appellant :M/s.P.Saravanan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory appellate remedy is available to the Writ Petitioner under Section129(A) of the Customs Act before the Appellate Tribunal. On the allegation of violation of principles of natural justice, it was pointed out before the learned Judge that the Writ Petitioner has not submitted any explanation to the show-cause notice and therefore, he is not entitled to cross-examine any witness. 5.The learned Judge, after finding that the Petitioner did not even chose to submit his explanation to the show-cause notice, held that he is not entitled to cross-examine any witness. The learned Judge has also pointed out that the Petitioner would be in a position to cross-examine the witnesses only to substantiate the stand taken in the reply to show-cause notice and on the other hand, the Petitioner having not filed any reply to the show-cause notice, cannot seek for cross-examination of the witnesses. The learned Judge after holding that the Petitioner/appellant is not entitled to cross-examine the witnesses and that there is no violation of principles of natural justice, has however, given liberty to the Petitioner to workout their remedy by preferring an appeal before the appellate authority. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and consequently, he is not entitled to cross-examine the witnesses. When we perused the order impugned in the Writ Petition, more particularly, the findings rendered at Paragraph 23,24 and 25 of the same, we find that the Adjudicating authority has observed that the replies, dated 9.9.2012, 27.9.20124.10.2012 and 16.10.2012 given by the petitioner to show-cause notice as well as the written submission, dated 12.02.2018 submitted by them at the time of personal hearing, did not touch upon the merits of the allegations made in the show-cause notice and on the other hand, they were repeatedly sent only by stating that the date of issuance of show-cause notice was not available; that the date of seizure was not available in the show cause notice and that the date of drawal of sample should be reckoned for calculating six month period for the issue of show-cause notice. 10.When the show-cause notice was issued with certain allegations of mis-declaration of the value, reply to the show-cause notice should meet the such allegations and state specifically as to how such allegations are factually and legally not correct or sustainable. In this case, the Adjudicating Authority has po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed the impugned order admittedly after issuing the show cause notice and also affording an opportunity of personal hearing to the writ petitioner. Therefore, it cannot be contended that the Adjudicating Authority violated the principles of natural justice. However, it is claimed by the writ petitioner that not giving an opportunity to cross-examine the witnesses also amounts to violation of principles of natural justice. The question as to why such opportunity was not given to the petitioner, certainly is not a simple question of law and on the other hand, it is a question of fact, which is answered by the Adjudicating Authority in the impugned order itself. Whether the reasons stated by such authority in not providing an opportunity to cross-examine are sustainable or not is the question that has to be considered and answered only by re-appreciation of all the facts and circumstances, which, in our view, has to be done only by the next fact finding authority, namely, the appellate authority. Therefore, we are not convinced to appreciate the contention of the writ petitioner with regard to maintainability issue. It is useful to note at this juncture, an observation made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
