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TMI Blog2024 (5) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority or not - HELD THAT:- The petitioners have mainly rebutted the preliminary objection raised on behalf of the respondent-authority for entertaining these writ petitions on the ground of having alternative remedy and violation of principle of natural justice as the respondent-authority has not decided the application/request of the petitioners to grant cross-examination of two co-noticee viz. Ms. Nita Parmar and Mr. Rutugna Trivedi and rejected such request in the impugned order. Another ground for preferring these petitions with request to entertain the same is for not supplying the relied upon documents in the pend drive which is according to the petitioner is a basis for passing the impugned order. The facts of the case are so gross to the effect that the petitioners are involved in smuggling of Gold in contravention of the provision of the Customs Act. Therefore, without going into merits of the case, it would be in the interest of justice to relegate the petitioners to avail the alternative efficacious remedy as held by the Apex Court in case of Assistant Commissioner (CT) LTU v. Glaxo Smith Kline Consumer Health Care Limited [ 2020 (5) TMI 149 - SUPREME COURT] from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Petitioner(s) No. 1 : Mr Hardik P Modh (5344). For the Respondent(s) No. 2 : Mr Siddharth H Dave (5306). For the Respondent(s) No. 1 : Notice Served ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned Senior Advocate Mr. Mihir Joshi assisted by learned advocates Mr. Hardik Modh and Mr. Amit Laddha, learned Senior Advocate Mr. Mihir Thakore for learned advocate Ms. Khyati Chugh, learned advocate Mr. Arjun Joshi, learned advocate Mr. Dhaval Shah and learned advocate Mr. Malay Dange for the petitioners of the respective petitions and learned advocate Mr. Siddharth Dave for respondent No. 2. 2. These group of petitions are filed challenging the Order-in-original dated 29.11.2021 passed by the respondent No. 2-Principal Commissioner of Customs, Ahmedabad as the petitioners are co-noticee, these petitions are heard analogously and are being disposed of by this common judgement and order. 3. Issue Rule returnable forthwith. Learned advocates for the respective respondents waive service of notice of rule. 4. For the sake of convenience, Special Civil Application No. 5090 of 2022 is treated as the lead matter. 5. The brief facts of the case of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Government Approved Valuer and the same was determined at Rs. 8,20,75,000/- in a market value and Rs. 7,18,18,810/- being the tariff value. The God bars were seized by the Officer under panchana dated 04.06.2019. It appears from the proceedings that Shri Jigneshbhai Savaliya in his statement admitted that the said gold bars were given to him by passenger named Shri Lokesh Sharma at Aerobridge of Bay No. 32 and he was supposed to handover the said gold bars to Shri Rutugna Trivedi outside the Airport terminal. 5.5 Shri Jigneshbhai Savaliya also informed that Shri Lokesh Sharma exited the Airport Terminal and upon instructions of the Officers of AIU, Shri Jignesh Savaliya called Shri Lokesh Sharma at Gate No. 5. Upon physical search of Shri Lokesh Sharma and examination of his baggage was also carried out but nothing incriminating was found. 5.6 It appears from the record that during the checking of the black coloured trolley bag carried by Shri Lokesh Sharma, the business card of Shri Rutugna Trivedi was found. In the sate of Shri Lokesh Sharma it is recorded that nine brown coloured packets containing gold bars were handed over to him in the duty free area of Dubai Airport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why 4886.206 kgs of gold smuggled into India from 07.03.2013 to 26.05.2019 should not be liable for confiscation under the provisions of the Customs Act, 1962 (for short the Act ) along with penalty under section 112(a) and 112(b) and 114AA read with section 123 of the Act. The petitioner filed interim reply to the show cause notice on 14.03.2020 contending that the statement recorded on 24.09.2019 and 26.09.2019 were under coercion and threat of arrest. 5.16 Personal hearing on the show cause notice was scheduled on 17.06.2021 and advocate for the petitioner requested for cross-examination of Ms. Nita Parmar and Mr. Rutugna Trivedi on the ground that the entire evidence case has been booked on the basis of the statements of Ms. Nita Parmar and Mr. Rutugna Trivedi apart from the documents seized from premises and the copy fo the same was not served upon the petitioner. 5.17 Thereafter, the personal hearing was re-scheduled on 12.10.2021 and the learned advocate for the petitioner reiterated request for cross examination of Ms. Nita Parmar and Mr. Rutugna Trivedi as well as the requested to supply relied upon documents (RUD) and letter was also filed on the same day specifying docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of prayer (c) above. (e). for costs of the petition be provided; and (f). for such further and other reliefs, as this Hon ble Court may deem fit and proper in the facts and circumstances of the case. 6. Learned Senior Advocate Mr. Mihir Joshi with learned advocate Mr. Hardik Modh for the petitioner submitted that the petitioner has challenged the Order-in-original dated 29.11.2021 passed by the respondent No. 2 imposing penalty on the petitioner without availing the alternative efficacious remedy on the principal ground that the same is in breach of the principle of natural justice as the respondent No. 2 did not provide an opportunity to cross-examine the witnesses and co-noticees as requested by the petitioner from time-to-time under Article 226 of the Constitution of India. Reliance was placed on the decision of the Hon ble Apex Court in case of Radhakrishna Industries Vs. State of Himachal Pradesh reported in (2021) 6 SCC 771. 7. Learned Senior Advocate Mr. Joshi further submitted that the respondent No. 2 also did not provide the relied upon documents(RUD) to the petitioner in spite of requesting the same from time-to-time by various communications after the show-caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pen-drive which were never supplied to the petitioner at all. In support of such submissions that there was a breach of the principles of natural justice, learned Senior Advocate Mr. Joshi referred to and relied upon the following decisions: Commissioner of Central Excise Customs vs. Chandan Steel Ltd reported in 2009 (238) E.L.T. 716 (Guj.); Kothari Filaments vs. Commissioner of Cus. (port) Kolkata, reported in 2009 (233) E.L.T. 289 (S.C.); Tushar Thakkar vs. Union of India reported in 1980 (4) SCC 499; Rajputana Stainless Ltd vs. Union of India reported in 2021 (12) TMI 180. 12. It was further submitted that no opportunity for cross-examination was granted by the respondent No. 2 in spite of the request was made for cross-examining of co-noticees Ms. Nita Parmar and Ms. Rutugna Trivedi though the data recovered from Ms. Nita Parmar and statements of both the persons were relied upon for the purpose of implicating the petitioner. It was therefore submitted that there was a clear breach of principles of natural justice on the part of respondent No. 2. 13. Learned Senior Advocate Mr. Joshi referred to the show-cause notice dated 24.12.2019 and reply dated 14.03.2021 of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtilizers and Chemicals Ltd (GNFC) vs. Union of India reported in 2020 (1) TMI 1204; Basudev Garg vs. Commissioner of Customs reported in 2017 (48) STR 427 (Del); Shree Salasarji Metal Industries vs. Union of India reported in 2018 (9) TMI 1980. 16. It was therefore submitted that on the grounds of opportunity of cross-examination as well as breach of principle of natural justice, the impugned order is liable to be quashed and set aside. 17. On the other hand, learned advocate Mr. Siddharth Dave appearing for respondent No. 2 submitted that the petitioners herein are only the co-noticee out of total 36 co-noticee against whom adjudication order is passed. It was therefore submitted that the alternative efficacious remedy to challenge the impugned Order-in-original dated 29.11.2021 is before the Customs Excise and Service Tax Tribunal under the provision of section 129A of the Customs Act, 1962. 18. It was submitted that while issuing the notice on 02.05.2022, this Court has reserved the opportunity for the respondent to raise the preliminary objection as regards the maintainability of this petition. It was submitted that the petitioner has alternative remedy under section 129A of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dheeraj Shrivastava vs. State of M.P. and ors reported in 2019 (9) TMI 392 (M.P. High Court); M/s. Prodair Air Products India Private Limited vs. The Deputy Commissioner of State Tax reported in 2022 (1) TMI 255 (Kerala High Court); M/s. M.A. Babu, the Deputy Chief Engineer Kerala State Electricity Board Limited and ors reported in 2018 (12) TMI 560 Kerala High Court; M/s. Falcon Retreat Private Limited vs. The Additional Commissioner of Income Tax in Writ Petition No. 529 of 2022, High Court of Bombay at Goa; Braham Prakash vs. Government of NCT at Delhi and anr in W.P.(C) 15947/2022 CM Appl 49690/2022 Delhi High Court; Delhi Development Authority Vs. Pushpa Wanti Ors in LPA 314/2021 and CM Appeal No. 30501/2021 Delhi High Court; M/s. Subhash Chand Mukesh Chand vs. State of Rajasthan in Civil Writ Petition No. 1017/2022 in Civil Writ Petition No. 1017/2022 Rajasthan High Court; Janab Y. Allah Baksh vs. The Chirman in S.P. No. 16126 of 2022 Madras High Court; M/s. Uniyarakhurd Gram Seva Sahkari vs. State of Rajasthan in Civil Writ Petition No. 11320 of 2022 Rajasthan High Court. 22. Learned advocate Mr. Dave thereafter referred to the conduct of the petitioner to show that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odgiri Premgiri Goswami on 06.09.2019 to remain present on 09.09.2019 and in response to that, the Advocate on behalf of Shri Pramodgiri Premgiri Goswami through individual email informed that on account of nonavailability of lawyer and on account of prior engagement of his client, it would be difficult for him to appear on the given dates of 09.09.2019. He also requested for another date in the month of September. Further, in response to summons dated 06.09.2019, Shri Pramodgiri Premgiri Goswami forwarded letter dated 09.09.2019 through email dated 09.09.2019 requesting for a new date on 12.09.2019 citing reasons of family function. 4th Summons : Accordingly, Summons dated 09.09.2019 was issued directing him to remain present before the investigation officer and assist the inquiry. However, the said Shri Pramodgiri Premgiri Goswami, though legally bound, intentionally avoided to attend summons at the time and place mentioned and evaded the said four Summons issued under Section 108 of the Customs Act, 1962, and thereby not co-operated in the inquiry and appears to have committed offences punishable under Section 174 of the Indian Penal Code, 1860 and therefore, a complaint under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the government exchequer the adjudicating authority having provided ample opportunity to the petitioner to place the defense but the petitioner failed to produce any evidence in support of the charges levelled in the show-cause notice and therefore, instead of making grievance on technicalities of breach of principle of natural justice, the petitioner is liable to raise all the contentions before the Tribunal. 27. Reference was also made by learned advocate Mr. Dave upon the modus operandi adopted by the petitioner for smuggling a huge quantity of gold into India. It was submitted that in the impugned order-in-original, respondent No. 2 has discussed the entire facts and evidence on record and the petitioner is only making hue and cry before this Court for breach of principle of natural justice without though the respondent-authority has provided ample opportunity of hearing to the petitioner for submitting the defense. It was therefore submitted that the petitions should not be entertained while exercising extraordinary jurisdiction under Article 226 of the Constitution of India. 28. Learned advocate Mr. Dave, in support of his submissions referred to and relied upon the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the petitioner for not providing opportunity of cross-examination, referred to and relied upon the following averments made in para 16.7 of the affidavit-in-reply filed on behalf of the respondent which reads as under: 16.7 As regard to Para 4.16 regarding request to provide certain relied upon documents are concerned, it is to submit that the Counsel for the petitioner had raised a plea for supply of certain relied upon documents vide his letter dated 12.10.2021. Though all the relied upon documents had been supplied to the petitioner along with the Show Cause Notice itself, the Counsel was informed to get the documents collected from Superintendent AIU and also the contact number of the concerned person had been given vide letter dated 20.10.2021. However, no documents have been collected till the issuance of impugned OIO and as such it is found that the plea for supply of relied upon documents was merely a ruse to delay the adjudication process. To prove that the plea for supply of relied upon documents was merely an attempt to delay the adjudication process, the following are submitted before Hon ble Court. It is pertinent here to mention that the Show Cause Notice w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmine the amount of duty or interest under sub-section (8), {a} within six months from the date of notice where it is possible to do so in respect of cases falling under clause {a) of sub-section (1); (6) within one year from the date of notice where it is possible to do so in respect of cases falling under sub-section (4). [Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under sub-section (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further period of one year: Provided further that where the proper officer fails to determine within such extended period, such proceeding shall be deemed to have concluded as if no notice had been issued;] Thus, it is provided in the Customs Act itself that adjudication proceedings is time bound after amendment of Section 28(9) of the Customs Act, 1962 as stipulated period of determining the case is six months/ one year in the cases of Section 28(1)/ 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivedi The personal hearing scheduled on 27.10.2021 was attended by his Counsel and he requested cross examination Shri Bhargav Kanubhai Tanti Counsel for the Noticee appeared for personal hearing on 26.10.2021 and sought for copies of relied upon documents. Shri Beerendra Singh Yadav The personal hearing scheduled on 27.10.2021 was attended by Shri Uday Joshi, Advocate and he requested cross examination. Shri Mukeshkumar Bhaishankarbhai Trivedi The personal hearing scheduled on 27.10.2021 was attended by Shri Uday Joshi, Advocate and he requested cross examination. Ms. Nia Chunilal Parmar The Counsel for the Noticee appeared for the personal hearing scheduled on 27.10.2021. He requested for cross-examination and asked for copies of various documents which are not a part of the relied upon documents. Shri Pramodgiri Premgiri Goswami Personal hearing was cheduled on 12.10.2021 wherein Shri Hardik Modh appeared and submitted that he would be making request for supply of certain documents. He also requested for cross examination. Shri Jitendrakumar Dhanjibhai Rokad Personal hearing was scheduled on 14.10.2021, 27.10.2021 and 2.11.2021. However, the Noticee failed to appear on any of sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner to prove that non-supply of documents has prejudiced him and affected his right to make an effective representation. In such a case, the petitioner's plea of non-supply of document has to be supported by prejudice caused to him in making an effective representation. It would also be pertinent to note the observations of the Supreme Court in State of T.N. v. Abdullah Kadher Batcha: (2009) 1 SCC 333, to the following effect: 7, The court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non-supply of the documents called for had any effect on the detenu and/ or whether the non-supply was prejudicial to the detenu. Merely because copies of some documents have (sic not) been supplied, they cannot by any stretch of imagination be _ called as relied upon documents. While examining whether non-supply of a document would prejudice a detenu, the court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another case of Shri K.I. Pavunny Versus Assistant Collector, Central Excise Cllectorate, Cochin, as reported at 1997(90) E.L.T. 241 (S.C), Hon'ble Supreme Court has held as under; Prosecution - Customs - Evidence required to prove offence - Supreme Court has consistently been keeping in view the object of Customs Act, 1962 viz. to safeguard duty and prevent evasion and smuggling which are organised white collar crimes committed under absolute Secrecy - Section 135 ibid - Section 9 of Central Excise Act, 1944, - Generally, the evidence in support of the violation of the Provisions by the Act consists in the statement given or recorded under Section 108, the recovery panchnama {mediator s report) and the oral evidence of the witnesses wn proof of recovery and in connection therewith. [1996 (83) E.L.T. 258 (SC and 1997 (89) ELT 646 (SC) referred to] (para 26) 34. Learned advocate Mr. Dave further referred to and relied upon the provision of section 124(b) of the Customs Act which deals with the issue of show-cause notice before commencing the proceedings for violation of the provision of the Act and noticee is required to submit his reply as is bound by the said provision. Refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated. [para 23] (v) Hon'ble Tribunal in its decision in Sridhar Paints v/s Commissioner of Central Excise, Hyderabad, as reported at 2006 (198) ELT 514 (Tri-Bang), has held that: . .. . denial of cross-examination of witnesses/ officers is not a violation of the principles of natural justice, we find that the Adjudicating Authority has reached his conclusions not only on the basis of the statements of the concerned persons but also the various incriminating records seized. We hold that the statements have been corroborated by the records seized (Para 9) (vi) Hon ble Punjab and Haryana High Court in its decision in the case of M /s. Azad Engg Works v/s Commissioner of Customs and Central Excise, as reported at 2006 (2002) ELT 423, held that; ...It is well settled that no rigid rule can be laid down as to when principles of natural justice apply and what is their scope and extent. The said rule contains principles of fair play. Interference with an order on this ground cannot be mechanical. Court has to see prejudice caused to the affected party. Reference may be made to judgment of Hon ble the Supreme Court in K.L. Tripathi v. State Bank of India and others, AIR 1984 SC 273 (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing decisions: (i) In the case of Surjeet Singh Chhabra v. UOI, as reported at 1997 (89) E.L.T. 646 (S.C.), it was held that Customs Officials are not police officers and admission made before them though retracted binds the deponent. In view of voluntary statements recorded and such statements not retracted did not warrant cross-examination when other circumstantial provided reliable basis corroborating the statements, When nothing surfaced that the witnesses had any enmity with appellants, those were not liable to be discarded nor required to be put to cross-examination. (ii) In the case of Jagdish Shanker Trivedi Vs. Commissioner of Customs, Kanpur, as reported at 2006 (194) E.L.T. 290 (Tri.-Del.), Tribunal observed at Para 7.2 that; Confessional statements of noticee - Retraction thereof, which was otherwise unacceptable, would not entitle them to claim cross-examination of witnesses on aspects which were confessed by them ~ There is no violation of natural justice principles in such a course... (iii) Hon ble Delhi Tribunal in the case of M/s. Onida Saka Ltd. v/s Commissioner of Central Excise, Noida, as reported at 2011 (267) E.L.T. 101 (Tri.Del), in para 4 of its order held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , then the request is not required to be accepted. 40. In support of his submissions he relied upon the following decisions: Union of India vs. Rajendra Bajaj reported in 2010 (253) ELT (Bom.); Jagdish Shankar Trivedi vs. Commissioner of Customs, Kanpur reported in 2006 (194) ELT 290 (Tri. Delhi); N.S.Mahesh vs. CC, Cochin reported in 2016 (331) ELT 402 (ker.); Laxmi vs. Collector of Customs, Lucknow, reported in 2001 (138) ELT 1090; M/s. Om International vs. CC, New Delhi reported in 2007 (217) ELT 88 (Tri. Del); Liyakat Shah vs. Commissioner of C.Ex. Indore-II(Bhopal) reported in 2000 (120) ELT 556; Shri Ranchhodbhai Patel vs. Central Board of Revenue, New Delhi reported in 2000 (125) ELT 281 (Punj); Harinder Pal Singh Shergill vs. Commissioner reported in 2010 (259) ELT A19 (SC); Surjeet Singh Chhabra vs Union of India reported in 1997 (89) ELT 646 (DC); M/s. Kanungo Co. vs. Collector of Customs reported in 1983 (13) ELT 1486 (SC); Fortune Impex vs. Commissioner of Customs, Calcutta reported In 2001 (138) ELT 556; M/s. Erode Annai Spinning Mills (Pvt.) Ltd reported in 2019 (366) ELT 647(T) 41. Learned advocate Mr. Dave has referred to and relied upon following decisions in suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority and they need to be regarded by those authorities. Again, non-availment of opportunity whether would also cause serious prejudice to the parties, also, can be well appreciated by the Appellate authority as and when raised. 35. From the entire gamut of discussion, what can be gathered is that service of show cause notice appears to be valid and thereafter also, couple of notices were served upon the petitioners for availing an opportunity of hearing at the time of adjudication of the show cause notice and it emerges prima facie that the petitioner has not participated. Whether the reasons put forth for non-participation, even through the authorised representative, could surely be agitated in appeal for the Appellate authority to adjudicate. Reliance was placed on the decision in case of Assistant Commissioner of State Tax vs. Commercial Steel Ltd reported in 2021 (10) Scale 665 of the Supreme Court wherein, the Hon ble Apex Court after considering the facts of the said case held that there was in fact no violation of principle of natural justice since notice was served on the person in charge of the conveyance and it was not appropriate therefore, in such facts it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness who have said that the recovery was made from the petitioner necessarily and opportunity was required to be given for 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 the confession made by the petitioner which binds him and therefore, in the facts of the case, the failure to give an opportunity of cross examination to the witness was held not to be violative of the principles of natural justice. It was therefore submitted that in the facts of the case when the adjudicating authority have relied upon the statement recorded by the custom officer under section 108 which are in form of admissible evidence, the adjudicating authority has rightly refused to grant opportunity of cross examination to the petitioner. 42. In rejoinder, learned Senior Advocate Mr. Joshi submitted that reliance placed on behalf of the respondent on the decision in case of State of Maharashtra vs. Greatship (India) Ltd (supra) could not be applicable in the facts of the case as in the said case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erring to the decision of the Assistant Commissioner of Sales Tax v. Commercial Steel Limited(supra), it was submitted that the said decision was passed in the facts wherein the assessee was not able to provide any of the four requirements for entertainment of the writ petition under Article 226 of the Constitution of India whereas in the facts of the present case, the petitioner has demonstrated that the respondent No. 2 has violated the principle of natural justice by by not supplying the relied upon documents and by not granting opportunity of cross examination. 46. It was also pointed out that decision of Surjeet Singh Chhabra (supra) is also not applicable as in the said case the assessee sought cross-examination of panch witnesses and seizing officer and the factual dispute was with respect to confiscation of jewellery either at conveyor belt or at green channel whereas in the facts of the case, admittedly the petitioner sought cross examination of co-noticee from whom the pen-drive was recovered and on the basis of the statement of co-noticee, penalties are levied by the respondent No. 2 and therefore, the cross examination was sought to bring the correct facts on record for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentions of not supplying the copies of relied upon documents and as well as not providing opportunity of cross-examination and therefore, the same are not narrated in detail. The basic challenge in this petition is with regard to impugned order-in-original is passed only on the ground of not adhering to the principles of natural justice and not granting opportunity of cross-examination as requested by the petitioner. 51. Having heard learned advocates for the respective parties and having considered the facts and material made available on record, it is not in dispute that the show-cause notice was issued on 24.12.2019 calling upon the petitioners to show cause as to why the petitioners should not be penalized by confiscating 43 Kg of Gold under the provisions of section 111 (d), 111(i), 111(l) and 111(m) of the Customs Act, 1962 along with custom duty, interest and penalty. Confiscation of different amount of gold from different persons along with custom duty, interest and penalty is reproduced hereunder: Names of Gold Smuggled Carrier Confiscation of Gold in Kg along with custom duty, interest and penalty Mr. Rutugna Trivedi 4886.206 Ms. Divya Kishore Bhundia 1607.632 Ms. Hina R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gold alleged to have been smuggled pursuant to the show cause notice and demanding the duty, interest and penalty, as stated in the impugned order, in relation to each of the petitioner. The same is not reiterated and elaborated for disposal for sake of brevity. 58. It is not in dispute between the parties that there is an alternative efficacious remedy available to challenge the impugned Order-in-original whereby, the adjudicating authority has ordered to confiscate the Gold alleged to have been smuggled by the petitioners or with the help of the petitioners on the basis of the findings arrived after elaborately discussing the evidence in detail. The petitioners have mainly rebutted the preliminary objection raised on behalf of the respondent-authority for entertaining these writ petitions on the ground of having alternative remedy and violation of principle of natural justice as the respondent-authority has not decided the application/request of the petitioners to grant cross-examination of two co-noticee viz. Ms. Nita Parmar and Mr. Rutugna Trivedi and rejected such request in the impugned order. Another ground for preferring these petitions with request to entertain the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows that when there is an alternative efficacious remedy is available to the petitioner, such ground can be taken by the appellate authority as the appellate authority is nothing but an continuation of the original proceedings. 61. Therefore, it would be necessary to refer to the various decisions vis-a-vis facts emerging from the record as to in the facts of the case whether the petitioners can raise such issue of cross-examination, supply of documents before the appellate authority or not. 62. It would be necessary therefore to refer to the decisions which are relied upon on behalf of the respondent in the affidavit-in-reply inasmuch as the facts also remains that the petitioner have been informed about the right to have inspection of the documents which are part of the pen drive along with show-cause notice. The petitioners were also required to exercise such right. 63. In the impugned order, the adjudicating authority has discussed the documents relied upon which are retrieved from the pen drive the petitioners therefore very well can request for the same before the appellate authority. The facts of the case are so gross to the effect that the petitioners are involved in smug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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