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TMI Blog2021 (3) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the name of M/s.Abi Sathiya Enterprises. Similar is the outcome of the investigation in the other case as well - The reply given by the appellant has been dealt with by the adjudicating authority from paragraph 80 of the Order-in-Original No.640 of 2012 and from paragraph 40 of the Order-in-Original No.639 of 2012. In the reply/representations, which the appellant had sent, he has not been specific as to why he requires cross examination because, the appellant has not brought out any independent facts or evidence as his defence to the allegation made against him in the show cause notice. The reply is a bald denial of the entire allegations stating that the appellant is not involved in the import of the said items - during the course of investigation and while considering the entire matter, the Adjudicating Authority has been able to bring out the facts as to how the appellant has impersonated himself, opened bank account in the name of a fictitious person, remitted customs duty by effecting cash payment in dummy bank accounts, opened in the name of an Enterprise and one Shri Rakesh Upadhaya. Therefore, the facts and circumstances of the case would clearly show that the req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal No.640 of 2012, which is subject matter of W.A.No.360 of 2021. 5.Based on the intelligence gathered by the Directorate of Revenue Intelligence (DRI), Chennai Zonal Unit to the effect that certain persons/importers were importing branded glass chatons under the guise of artificial stones/imitation stones, etc., by mis-declaring the value of the consignments and misusing IECs through the Air Cargo complex at Chennai as well as through the Seaport at Chennai, investigation was conducted by the DRI and show cause notice dated 26.03.2011, was issued to several persons and the appellant before us, Mr.Stalin Joseph, was one of the noticees. The proposal in the show cause notice as against the appellant and three others, viz., M/s.Abi Sathiya Enterprises, Mr.Zahir Hussain and Mr.T.Suresh is as hereunder:- (a) The description of the goods declared as Decoration Artificial Stones (Mix Model and sizes in various colors) imported under Bill of Entry No.652589 dated 08.10.2010 should not be rejected and held as Glass Chatons ; (b) The value declared @ $ 7.5/kg in respect of the said item referred to in (a) above, imported under Bill of Entry No.652589 dated 08.10.2010 should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e import and that he should not be held responsible for the act of commission or omission by other parties with fraudulent intentions. Further, the appellant contended that penal proceedings are quasi criminal in nature and the Department ought to prove and establish mens rea on the part of the accused before inflicting penalty. The appellant placed reliance on certain decisions to support such contention. 10.Further, the appellant denied the allegations that he was an abettor and stated that in order to constitute abetment, the abettor must be shown to have intentionally aided to the commission of crime, mere proof of alleged crime would not have been committed without the interposition of the alleged abettor, if not informed compliance with requirement of Section 11. This submission was made by referring to the decision in the case of Sriram vs. State of Uttar Pradesh [(1975) 3 SCC 495]. The appellant requested for grant of personal hearing and also to permit him to cross examine Mr.D.Vaithiyanathan, Mr.Mohammed Saleem, Mr.Zahir Hussain and Mr.T.Suresh after which, he agreed to submit a detailed reply. The reply dated 10.02.2011, was followed by another representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been entertained in the year 2013, ought not have been dismissed after a period of seven years on the ground of not availing the alternate remedy, without considering the contentions raised by the appellant in the writ petitions. It is further submitted that the main ground, on which the appellant had filed the writ petitions, was by contending that the initiation of the proceedings against him was in gross violation of the principles of natural justice, the appellant was not an importer and was sought to be implicated on the basis of mala fide action of high ranking officials of the DRI, against whom, the appellant had filed criminal complaint, who were charged under the provisions of the Prevention of Corruption Act for demand of illegal gratification in a case registered by the Central Bureau of Investigation (CBI). 16.Further, it is contended that though the appellant has sought for cross examination of the material evidences and copies of the documents, without affording such an opportunity, the order has been passed by the Adjudicating Authority, which shows that the order is in violation of the principles of natural justice and therefore, the writ petition was maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the order of adjudication passed by the respondent/authority. Therefore, we are inclined to take up the matter for a decision on merits, rather than to relegate the appellant to avail the alternate remedy, since the pleadings were complete in the writ petitions, though the decision in the case of Dunlop India Limited (supra) has held that Court must have good and sufficient reason to bypass the alternate remedy provided by statute. 21.What weighed in our minds is that the writ petition was pending before this Court from the year 2013 and therefore, it will be harsh on the appellant to be now relegated to file an appeal before the Tribunal more so when, the respondent/Department had filed their counter affidavit in the writ petition seeking to sustain the Order-in-original. 22.We have carefully gone through the Order-in-Original, which is an elaborate order. 23.The outcome of the investigation was that Mr.Zahir Hussain was the actual owner of the goods imported by M/s.Abi Sathiya Enterprises and Mr.Zahir Hussain, in connivance with the appellant and Mr.T.Suresh, had imported branded glass chatons in the guise of artificial stones by grossly under invoicing the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and later, shifted to M/s.DLF Pramerica Life Insurance, who had gone on record to state that the appellant approached him for arranging bankers cheques without revealing his or his company's identity and that he had no knowledge of such accounts and he asked Mr.Manoj Kumar Ojha, who was his colleague in the same Bank about the said requirement and Mr.Manoj Kumar Ojha, after about two weeks time, told him to deposit the cash in the accounts of M/s.Anshika Enterprises and Shri Rakesh Upadhaya to take bankers cheques favouring Commissioner of Customs. Further, the investigation had revealed that Mr.Manoj Kumar Ojha opened dummy accounts in the names of M/s.Anshika Enterprises and Shri Rakesh Upadhaya, who was his brother-in-law and he had exploited his colleague Mr.R.Guruprasath working in Kotak Mahindra Bank by throwing a weight based on the commission offered by the appellant, they connived with Mr.R.Guruprasath and issued bankers cheques in favour of the Commissioner of Customs from the accounts of Shri Rakesh Upadhaya and M/s.Anshika Enterprises and as per the arrangement Mr.R.Guruprasath had with the appellant, the commission was shared between Mr.R.Guruprasath and himself an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, in our view, rightly pointed out that such request has to be considered based on facts and circumstances of each case. After referring to the factual matrix, the Adjudicating Authority concluded that the request for cross examination was a mere ploy and to scuttle and delay the adjudication process. The conduct of the appellant is clearly brought out in the adjudication order that he has been evading the summons and absconding and not availing the opportunity of personal hearing. After elaborately discussing all the factual matrix, the Adjudicating Authority held that the other co-noticees have not retracted their statements given under Section 108 of the Act and the plea made by the appellant for cross examination is only for dragging on the proceedings and therefore, there are enough and valid grounds to deny such request. The facts, which have been brought out by the Adjudicating Authority in the Order-in-Original, clearly expose the appellant's role. 31.We agree with the finding of the Adjudicating Authority that the plea raised by the appellant demanding cross examination is only with a view to drag on the matter. In fact, in the reply/representations, which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said case and the Court went to the extent of observing that it refuses to comment on the petitioner's insistence for cross examination or the authority's reluctance to grant it. Further, the said decision was relied on to state that the request of cross examination should have been decided separately and not along with the Order-in-Original. This proposition cannot be canvassed by the appellant, as the Adjudicating Authority has clearly brought out the conduct of the appellant at the stage of the investigation and even after the show cause notice was issued. The appellant did not cooperate with the adjudication process, was unsuccessful in obtaining an order of Anticipatory Bail and he was absconding. More importantly, the statements, which were given by the other co-noticees, which have been referred to by the Department, have not been retracted and remained as such. Therefore, the Adjudicating Authority was right in observing that the request for cross examination was a ploy and only to drag on the proceedings. That apart, if the co-noticees, who were examined and who have given statements which clearly brings out the role of the appellant, then the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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