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TMI Blog2019 (11) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original has proceeded in ignorance of, or by overlooking, the communication, dated 30th July, 2019, of the petitioner. It is true that the impugned Order-in-Original makes no specific reference to the order, dated 6th September, 2019 supra, passed by this Court. However, this Court had, in the said order, merely directed that the application, dated 30th July, 2019, be considered and decided by the Commissioner. Inasmuch as the impugned Order-in-Original has taken stock of the said communication, as well as the demands of the petitioner therein, we do not find the lack of reference, in the impugned Order-in-Original, to the order dated 6th September, 2019, passed by this Court, sufficient justification to set aside the impugned Order-in-Original. Cross-examination - HELD THAT:- The request, of the petitioner, was for permission to examine, rather than cross-examine, the said officers. Be that as it may, the Commissioner has taken a considered decision not to summon the officers, who had assessed the concerned imports, in the witness box, as he was required to decide whether the imports themselves were in accordance with law, or not, and whether the petitioner was com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se proceedings, have been held liable to confiscation under clauses (d) and (o) of Section 111 of the Act, (iv) penalty of ₹ 1,00,00,000/-has been imposed, on the petitioner, under Section 114AA of the Act, and (v) penalties have been imposed on various other persons/parties, who are not before this Court and to which, therefore, it is not necessary to allude in detail. Facts 2. Paper was imported, by the petitioner, under various Bills of Entry, between 8th March, 2011 and 21st January, 2015, at the Inland Container Depot, Tughlakabad (ICD, TKD). Duty was paid, on the said imports, by debiting various licenses/scrips, issued under the Duty Free Import Authorisation (DFIA) Scheme, Focus Product Scheme (FPS) and Focus Market Scheme (FMS), under the Foreign Trade Policy (hereinafter referred to as FTP ) of the Directorate General of Foreign Trade (DGFT). It is not necessary, for the purposes of this judgment, to enter into the specifics of these licenses/scrips. Suffice it to state that the DFIA, FPS and FMS are export promotion schemes, provided in the FTP, whereunder importers could import items duty-free, or at reduced rates of duty, subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued Show Cause Notice, dated 7th March, 2016. Reliance was placed, in the Show Cause Notice, on statements of Sudhir Kumar Jain, the partner of the petitioner, in which he admitted that duty had been paid, on the imports effected by the petitioner, by Sharafat Hussain, using scrips issued to M/s Zealous International. He, however, pleaded innocence in the matter, by asserting that, as the scrips were registered in the EDI system, there was no reason for him to doubt their genuineness. He admitted, however, that, innocence or guilt aside, if the scrips were actually fraudulent, or exemption from duty, thereunder, had been availed in excess of that which was actually available under the scrips, the liability to pay differential duty would be on the importer who had imported the goods. The duty allegedly evaded, on the imports effected by the petitioner, through Kirti Cargo, was, allegedly, ₹ 5,40,11,525/ . The Show Cause Notice did not believe the claims to innocence, as pleaded by the petitioner, and alleged that the petitioner was in collusion with Sharafat Hussain, and, therefore, a willing conspirator in the entire fa ade. The petitioner was, therefore, directed to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, may kindly be allowed. (vi) The parametres which are required to be verified by the officers before granting Customs out of charge as prescribed in the relevant exemption notifications and Customs Manual; (vii) The name of the officers who have allowed out of charge may kindly be communicated and the cross examination of all of them to may kindly be allowed. (viii) The status of investigations by the Customs and Police Authorities may kindly be informed; (ix) The documents relating the action taken for protection of Passwords and action against the officers on password compromise in terms of Board s instructions vide F. No. 401/77/2009-CUS.III, dated 15.05-2009 under the signature of Kameshwari Subramanian (Joint S.C. of J.S) may kindly be provided; (x) The documents relating to action taken against the Customs Officers who have registered such licenses, debited and audited them and allowed Customs out of charge relating to clearance of goods under Show Cause Notice may kindly be provided; (xi) The documents relating to follow up of money trail to identify the real beneficiary, who have received the amount paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is dated 30th July, 2019 (Annexure P-5) whereby the petitioners are seeking cross examination of few witnesses and also demanding certain documents from the respondents authorities. 3. The decision shall be taken by the Respondent No.1 upon application of the petitioner dated 30th July, 2019 (Annexure P-5) in accordance with law as expeditiously as possible and practicable, preferably within a period of three weeks from today. 4. With these observations, this writ petition is hereby disposed of. 5. Liberty is reserved with this petitioner to approach the appropriate Tribunal/Court/Forum if so advised, in accordance with law with proper averments, allegations and annexures. 6. In view of the aforesaid order, time limit prescribed by this Court for adjudication of the show cause notice in our order dated 22nd July, 2019 in W.P. (C) 7830/2019 is extended and the same shall be adjudicated upon as expeditiously as possible and practicable, preferably within a period of three weeks from today. 9. The petitioner, thereafter, filed Review Petition 431/2019, seeking review of the aforesaid order, dated 6th September, 2019, passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds is indisputed. 12. The present writ petition is directed against the aforesaid Order-in-Original, dated 11th October, 2019, passed by the Commissioner and seeks quashing thereof. Submissions and Analysis 13. We have heard Mr. Krishnan Venugopal, learned Senior Counsel appearing for the petitioner, assisted by Dr. Sushil Gupta, and Ms. Sonu Bhatnagar, learned Senior Standing Counsel appearing for the respondent, at length. 14. Mr. Krishnan Venugopal submitted, emphatically, that the Commissioner has passed the impugned Order-in-Original in complete ignorance of the communication, dated 30th July, 2019 supra, and that, for this sole reason, the Order-in-Original is a nullity, and void ab initio. 15. He submits that, while the Commissioner could have accepted, or rejected, the requests contained in the said letter, for being provided documents, details and permission to cross-examine officers, he could not have proceeded by ignoring the said communication. This, Mr. Venugopal submits, amounts to an affront to the Court, and invites evisceration of the impugned Order-in-Original from its roots. 16. We find, however, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports themselves were in accordance with law, or not, and whether the petitioner was complicit in effecting the allegedly illegal imports. The justifiably of this decision of the Commissioner is, in our view, not amenable to examination under Article 226 of the Constitution of India, as there is an efficacious alternate remedy available, to the petitioner, by way of statutory appeal before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal ), under Section 129A of the Act. 22. Mr. Venugopal candidly conceded that the reluctance, of his client, to approach the Tribunal is because, were it to do so, it would have, in the first instance, to pre-deposit 7.5 % of the duty demand, as confirmed against it by the impugned Order-in-Original, dated 11th October, 2019, being in the nature of a mandatory statutory requirement under Section 130EE of the Act. 23. This, in our view, cannot constitute reasonable justification for avoidance, by the petitioner, of resort to the statutorily provided appellate remedy. 24. No doubt, in an appropriate case, where an adjudication order is passed by an incompetent authority, or in st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not possible to pigeonhole the present case into any of the above categories. 31. In the present case, the Commissioner has, in para 11 (1) of the Show Cause Notice, adverted to all the communications, of the petitioner, by way of response to the Show Cause Notice dated 7th March, 2016. The petitioner has, till date, not chosen to file a final reply to the Show Cause Notice on merits. Nonetheless, para 11(1) of the Order-in-Original takes stock of all the contentions advanced by the petitioner, in his various representations, in response to the Show Cause Notice, including the communication dated 30th July, 2019 supra. 32. The Commissioner has also rejected the request, of the petitioner, for being allowed cross-examination of the officers who had assessed the imports in question. As to whether this decision, of the Commissioner, was justified, or not, would more appropriately fall to be decided in appeal, by, the Tribunal. 33. We take note of the fact that this is not a case in which the Commissioner has relied on any statements, recorded under Section 108 of the Act, without permitting cross-examination of the deponents thereof. 34. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In particular, the Respondents have not satisfactorily responded to the following averments in the petition: Further the EDI is completely secured system and can only be accessed by the Customs officials since a unique single sign on identity ( SSOID ) is only issued to Customs officer and a password is required to access the online EDI system and it is not conceivable as to how all the unique SSOID and passwords of all officers working at ICD, Tughlakabad, from 2011-2015 have been accessed when the password is required to be changed every 15 days/fortnightly. 35. We do not wish to make any comments to this submission, advanced by learned Senior Counsel for the petitioner, as they might prejudice the proceedings which the petitioner may, if so advised, choose to prosecute before the Tribunal. The applicability, to the present proceedings, of the decision in Farha Hussain 2018 SCC OnLine Del 9352 which, incidentally, was a challenge to an order of preventive detention, passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973 could also be examined by the Tribunal. 36. Despite the fervent efforts of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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