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TMI Blog2022 (6) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... 3] Facts leading to this petition shorn of details can be stated thus:- The petitioner is working with Airport Sorting Authority (APSO) as a clearing agent. It is further alleged that a criminal conspiracy was hatched by Naishad Kapadia, Mohmmad Manaswal, Ketan Kothari and others to defraud the Government of India of its legitimate revenue by causing import of Iridium Sponge. Pursuant to the conspiracy, the Iridium Sponge was imported from Singapore by one Mohammadi Manswala in the name of NBK enterprises on a grossly understated value under the cover of invoice raised by M/S Lim fa Pte Ltd or M/S Yuva International Pte Ltd. Based upon the purported intelligence, the officer found a speed post parcel that had arrived at APSO office under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad B Kapadia, Yusuf Madraswala, Smt. Tasneem M. Lokhandwala, Shri Karan Kothari, Iqbal Sattur and Balu Kothare Moiz Mohta. This request was turned down by the Respondent No. 2. Thereafter, vide order dated 8th May, 2020, Respondent No.2 imposed penalty of Rs 90,05,396/- on the Petitioner. This order is impugned in this petition. 5] Learned counsel Shri Raichandani submitted that the principles of natural justice have been violated by Respondent No.2 while passing the impugned order in original. He submitted that Respondent No.2 did not furnish opportunity to the Petitioner to cross-examine the witnesses. Respondent No.2 observed that cross-examination of witnesses would not shed any further light and on this ground Respondent No.2 did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayed for dismissal of the Writ Petition. He placed reliance on the following authorities. i] WP No.2539 of 2020 with WP NO.2540 of 2020 with IA No.93482 of 2020 in the case of Raju Laxman Pachhapure vs. Union of India & Anr. in which it is observed thus, "13. Having heard the learned counsel for the parties for some time and also having perused the papers and proceedings, we are not persuaded to invoke our writ jurisdiction at this stage. We are of the considered opinion that the alternative remedy of appeal is efficacious and the reason given for not invoking the same i.e. pre-deposit being burdensome does not appeal to us. Accordingly, we relegate the petitioners to the remedy available under the CGST Act by way of appeal." ii] WP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating 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 rejecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexure. This is not a merely referred material. These statements are proposed to be expressly relied upon. If they are relied upon, then, it is incumbent upon the first respondent to allow the petitioner to allow the petitioner to cross-examine these persons during the course of the adjudication." 10] From the order of the Respondent No.2 it is seen that Adjudicating Authority has placed reliance on the statement of Naishad B. Kapadia. The Respondent No.2 has observed in the order dated 08.05.2020 that the show cause notice had categorically and comprehensively brought out the role of all the persons including that of Shri Javed Shaikh @ Samir Shah @ Dasu Shetty who was named for his alleged involvement only by one person i.e. Shri Nais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble against the Petitioner in the said statement is too little. The impugned order passed by the Respondent No.2 does not say that there is no material against the Petitioner in the statement of Naishad B. Kapadia. It has simply declined the permission to cross-examine the witness Naishad Kapadia and other witnesses only on the ground that it will not shed any further light. It is not for the authority to conclude in advance whether the cross-examination would be helpful or not or nothing fruitful would be eilicited in cross-examination. This approach of Respondent No.2 is not correct. Without cross-examining the witness it is impermissible for the Authority to say that no fresh light will be shed. 12] it is true that alternative remedy o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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