9911796707
TMI Blog2022 (12) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ) regarding mis-declaration of goods being imported under Bill of Entry No. 6907998 dated 27.09.2010 at ICD, Tughlakabad, New Delhi by M/s. Jagdamba Enterprises, with an intention to evade customs duty that the goods were detained vide Punchanama dated 01.10.2014. Statements of Shri Naresh Kumar Jha, IEC Holder and Proprietor M/s. Jagdamba Enterprises and that of Shri Ashok Sharma and Prakash Chand Sharma, Directors of CHA firm M/s. Him Logistics Ltd. were recorded. Thereafter, a Show Cause Notice bearing no. 26/2014 dated 28.03.2015 was served upon the appellant proposing the recovery of reassessed customs duty along with the interest. Penalty was also proposed to be imposed under Section 112 (a) and 112 (b) read with 114(A) Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel further brought to the notice that there is no statement of appellant ever recorded, no document from his possession were ever recovered. The entire case of department is based upon third party evidence which is nothing but the statement of three persons. One being the proprietor of the importer and two other being the Directors of the Customs House Broker of the importer. Learned Counsel expressed the grievance that despite request no opportunity to cross-examine three of those persons was afforded to the appellant. In fact his request to cross-examine three of them was rejected vide order No. 6/ADJ/08/2015 dated 01.09.2020. Learned Counsel also bring to the notice that an appeal was filed by the appellant against the said order also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall so far as may be apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court." 6. The above provision is pari meteria Section 9D of Central Excise Act, 1944. Hon'ble Apex Court in a land mark decision in the case of J&K Ciga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion is irresistible, namely, the provision is not uncanalised or uncontrolled and does not confer arbitrary powers upon the quasi judicial authority. The very fact that the statement of such a person can be treated as relevant only when the specified ground is established, it is obvious that there has to be objective formation of opinion based on sufficient material on record to come to the conclusion that such a ground exists. Before forming such an opinion, the quasi judicial authority would confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for such a decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above and that there is not retraction by any of the the three witnesses whose cross-examination has been prayed for. In the given circumstances and keeping in view the mandate of the statute as has been directed by the Hon'ble Apex Court to be strictly followed in all adjudications, where there appears the violation of the right to natural justice, I deem it a fit case to be remanded back again to the original adjudicating authority with the direction that three of the witnesses namely Shri Naresh Kumar Jha, Shri Prakash Chand Sharma and Shri Ashok Sharma be once again summoned and an opportunity be afforded to the appellant to cross-examine three of the said witnesses. The adjudicating authority is required to adjudicate the impugned s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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