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TMI Blog2008 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh consideration - 7307 of 2008 - - - Dated:- 16-12-2008 - S.B. Sinha and Cyriac Joseph JJ. [Judgment per S.B. Sinha, J.] - Leave granted. 2. Appellant No.2 is a proprietory concern of the First Appellant which is importer of various items of goods including Lithopone. Appellant No.1 placed an order for import of 21.5 MT of Lithopone 28-30% (pigment), with Texpo International, Hong Kong. The said item is used in manufacture of paint. It is a freely importable item. When the goods arrived at the port, a bill of entry for 21.5 MT of Lithopone was filed. The requisite custom duty after assessment was paid. However, on physical verification, out of the imported items 400 bags of 25 kg. each contained in a yellow coloured subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken against them. 6. By reason of an order dated 29.12.2000, however, the goods were not only directed to be confiscated but also a penalty of Rs.5,00,000/- was imposed on the company. A personal penalty of Rs.1,00,000/- was imposed on Appellant No.2. 7. An appeal preferred there against before the Customs, Excise and Gold Control Appellate Tribunal, Calcutta was dismissed by an order dated 19.4.2002. A writ petition was filed there against which by reason of the impugned judgment has been dismissed. 8. Mr. J.K. Srivastava, learned counsel appearing on behalf of the appellant, submitted that before the impugned order was passed by the authorities of the Customs Department, admittedly an enquiry was conducted at various places. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expo International of 57 Wyndham St. 5 th Floor, Hong Kong does exist which is registered with the business register Hong Kong. This is a partnership concern. However, the relationship between Indian Importers M/s. Kothari Filaments and the Belgiam company Lok Hauk Food and Texpo International Hong Kong could not be verified. Regarding verification of genuineness of documents produced by Texpo International Hong Kong and attested by Indian Chambers of Commerce revealed that the attestation of documents by them was made in normal course they neither verified the contents of the documents nor undertake any responsibility for the contents of the documents attested. Evidences to this effect cannot be disclosed at this juncture since the enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less sufficient materials are placed by the appellants showing that it was a mistake on the part of the foreign exporter to send wrong items and the conclusion of the overseas enquiry was wrong, the Customs authority has no liability to disclose their materials. The position would have been different if the initial onus was upon the customs authority to prove mala fide intention of the appellants and in such case, it could be legitimately argued by the appellants that in absence of disclosure of documents they were unable to controvert the veracity of such documents." 14. Does the show cause notice make enough indication in regard to the nature of enquiry as also the conclusions thereof is the question? In our opinion, it does not. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copies whereof were not supplied or inspection thereto had not been given. He, thus, could not have adverted to the report of the overseas enquiries. A person charged with mis-declaration is entitled to know the ground on the basis whereof he would be penalized. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply. 17. This aspect of the matter has been considered in Rajesh Kumar Ors. v. Dy. CIT Ors. [(2007) 2 SCC 181], wherein this Court held : "In any event, when civil consequences ensue, there is hardly any dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved the same. " In S.L. Kapoor v. Jagmohan Ors. [(1980 (4) SCC 379], this Court observed : "18. In Ridge v. Baldwin and Ors. [1964] AC 40 @ 68, one of the arguments was that even if the appellant had been heard by the watch committee nothing that he could have said could have made any difference. The House of Lords observed (at p. 68) : 'It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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