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TMI Blog2020 (11) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... t he resigned his job on 31.08.2015 and though it was to take effect on 30.10.2015, it was kept pending as his accounts were not settled by his employer. He contends that he was attending the work at Air Cargo Complex, Rajiv Gandhi International Airport, Shamshabad, Hyderabad(for short 'ACC'). 3. The 2nd petitioner is an employee of M/s East West Freight Carriers Pvt. Ltd., Begumpet, Hyderabad as Operational Executive. 4. The Officers of the Directorate of Revenue Intelligence, Hyderabad(DRI), upon intelligence gathered by them which indicated that one consignment containing imported cigarettes would be taken out of ACC on 08.10.2015 in the guise of engineering products, computer parts etc., without paying customs duty, intercepted Auto Trolley bearing No. AP 13 Y 1205 carrying cargo consisting of 2 skids/pallets at the exit gate of ACC complex on that day. 5. The said Auto Trolley was escorted by one Mohammed Nimatullah Shareef, who informed the intercepting officer that the cargo was handed over by the 1st petitioner and the documents would be available with the 1st petitioner. Later, the said individual stated that another set of documents would be available with Mr.Syed Irfa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14AA of the Customs Act, 1962. Contentions of the petitioners: 15. At the stage of admission of the Writ Petition, it was pointed out to the counsel for petitioners that they have a remedy of appeal against the impugned order under Section 129A of the Act to the Customs, Excise, Service Tax Appellate Tribunal(CESTAT), but the counsel for petitioner insisted that when there is a violation of principles of natural justice, petitioners need not avail alternative remedy of appeal to the Appellate Tribunal and that they can maintain this Writ Petition. 16. According to the 1st petitioner, the entire allegations leveled against him were based upon the statements rendered by natural persons, that he had specifically sought for cross-examination of the said individuals by making requests on 02.03.2017 and 07.10.2019, and that without offering the 1st petitioner an opportunity to cross-examine the said persons and without offering him an opportunity to verify the original record, the impugned final order was passed on 04.09.2020 running into 129 pages levying penalty under the Customs Act, 1962. 17. The main contention of the petitioners is that there has been a violation of principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 549. The issues for consideration by the Court 23. So the issues to be considered are: "(a) Whether it is always incumbent on the part of an adjudicating authority under the Customs Act,1962 to give opportunity to cross examine persons whose statements had been recorded under sec.108 of the said Act? And (b) Are there any exceptions to the said rule?" The discussion on the issues by the Court 24. First we shall deal with the nature of enquiry under the Customs Act,1962. 25. A Constitution Bench of the Supreme Court in Ramesh Chandra Mehta (supra) held that the Customs Officer even under the Act of 1962 continues to remain a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry into India of dutiable goods without payment of duty and of goods of which the entry is prohibited. He does not on that account become either a police officer, nor does the information conveyed by him, when the person guilty of an infraction of the law is arrested, amount to making of an accusation of an offence against the person so guilty of infraction. Even under the Act of 1962 formal accusation can only be dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the adjudicating authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guesswork as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the adjudicating authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court held that since petitioner therein had confessed to the offence of smuggling, failure to provide to him an opportunity to him to cross examine the witnesses, is not violative of principles of natural justice. "3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was unnecessary in certain circumstances such as the one at hand where all material facts were admitted by the appellants in their statements before the authority concerned. 25. There is, in our opinion, no merit even in that submission of the learned counsel. It is evident from Rule 3 of the Adjudication Rules framed under Section 79 of FERA that the rules of procedure do not apply to adjudication proceedings. That does not, however, mean that in a given situation, cross-examination may not be permitted to test the veracity of a deposition sought to be issued against a party against whom action is proposed to be taken. It is only when a deposition goes through the fire of cross-examination that a court or statutory authority may be able to determine and assess its probative value. Using a deposition that is not so tested, may therefore amount to using evidence, which the party concerned has had no opportunity to question. Such refusal may in turn amount to violation of the rule of a fair hearing and opportunity implicit in any adjudicatory process, affecting the right of the citizen. The question, however, is whether failure to permit the party to cross-examine has resulted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice issued on 21-8-1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant." 28. Coming to the case at hand, the adjudicating authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants, the adjudicating authority also placed reliance upon the documents produced by Miss Anita Chotrani and Mr Raut. These documents were, it is admitted, disclosed to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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