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TMI Blog2024 (12) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that reply to the notice could also be submitted on or before that date. The appellant once again vide letter dated 15.07.2015 submitted that that he was not in a position to reply to the notice and requested further time sought for another 3 months time. It is seen that the show-cause notice was issued on 31st March 2015, the appellant went on delaying to reply to the show-cause notice with one or the other pretext and nearly after 5 months, reply was filed on 24.08.2015. In his reply, the appellant had challenged legality of the show-cause notice and various proceedings during the investigation based on legal infirmities but nowhere has he stated specific reasons for cross-examination of the officers and other individuals - There is no mention of the name of the officers or any individuals. Only on 14.09.2015, the appellant submitted a letter providing the list of witnesses to be cross-examined and the reasons mentioned against these individuals are for having recorded statement, having prepared the inventory and arrested the appellant, having searched the shop premises of the appellant, having filed a reply to the retraction filed by the appellant, against the statement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order. Since the issue lies in a narrow compass, the Appeal itself is taken up for hearing and disposal with the consent of both sides. 2. This appeal is filed by the appellant, Shri Abdul Khader Proprietor of M/s. Riya Electronics, against Order dated 05.10.2015 passed by the Commissioner of Customs, Kochi. 3. The appellant had imported 2203 cartons consisting of fan parts, LED blub parts etc., and on investigation, it was found that the quantity and value were mis-declared, hence show-cause notice dated 31.03.2015 was issued. The Appellant had requested for cross-examination of 9 individuals and the Commissioner in the impugned order based on the guidelines laid down by the Hon ble Supreme Court and various other High Courts held that cross-examination in quasi-judicial proceedings is not a matter of right and decision regarding the grant of cross-examination is to be arrived by the adjudicating authority depending upon the facts and circumstances of each case. Relying upon various judgements, the Commissioner in the impugned order acceded for cross-examination of one of the officers and rejected cross-examination of all other officers including cross-examination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individuals. He also relies upon the various judgements to substantiate his arguments. He places reliance on the following judgements: N.S. Mahesh versus Commissioner of Customs Cochin: 2016 (331) ELT 402 (Kerala) Kanungo and Company versus Collector of Customs, Calcutta and others: 1983 (13) ELT 1486 - SC State of Kerala versus KG Shadi: 1972 (3) TMI (69) - Supreme Court JSW Steels Ltd. versus Commissioner of Central Excise, Belgaum: 2010 (254) ELT 318 (Tri.- Bang.) Manidhari Stainless Wire Pvt Ltd. versus Union of India: 2018 (360) ELT 255 (AP) Pacific Alloys Private Ltd. Vs. Commissioner of Central Tax, Pune-III: 2019 (368) ELT 835 (Bom.) 6. Heard both sides and perused the records. The appellant was issued with the show-cause notice dated 31.03.2015 under Section 28 and 124 of the Customs Act, 1962 alleging undervaluation of the goods imported based on the inventory undertaken and based on various documents recovered at the time of investigation. The appellant instead of replying to the notice, vide letter dated 25.04.2015 requested for one months time to reply to the notice, which was granted up to 31.05.2015 and personal hearing was scheduled on 03.06.2015. The appellant onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2016 dismissed the stay application and the appeal on the ground that In terms of provisions of Section 129A of the Customs Act 1962, appeals to the Appellate Tribunal would lie against an order or decision of the Commissioner of Customs as an adjudicating authority. The present order passed by the Commissioner is not a final order passed by him as an adjudicating authority but is an interim order passed by him during the course of adjudication proceedings which are continuing before him. we find that the present order is not an appealable order in terms of the provisions of section 129A of the Customs Act, hence the appeal itself is not maintainable. Against this order, the appellant filed an appeal before the Hon ble High Court of Kerala vide Writ Petition No.8408 of 2016. The Hon ble High Court disposed the petition on the ground that Section 129A(1) would clearly indicate that any order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority is an appealable order, which would lie before the Tribunal. Accordingly, the order of the Tribunal was set aside and was directed to reconsider the matter afresh after giving opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers who signed the Mahazar and inventory as a witness and since the inventory and Mahazar had not been challenged by the appellant, the Commissioner refused cross-examination of this individual. The appellant in his reply does not make any reference to the statement of this witness, hence rightly rejected. f. Witness No.9 Smt. Pramila Rose, Appraiser , the cross-examination was sought on the ground that there is a complaint against this officer without mentioning the details of the complaint. Any complaint against the officer will be dealt in separate proceedings and has nothing to do with the adjudication proceedings and hence, Commissioner s rejection on this ground is also a valid ground. Therefore, we do not find any substance in the request of the appellant for cross examination of all the above witnesses. 6.3 From the facts recorded at Para 5 above, it is seen that the show-cause notice was issued on 31st March 2015, the appellant went on delaying to reply to the show-cause notice with one or the other pretext and nearly after 5 months, reply was filed on 24.08.2015. In his reply, the appellant had challenged legality of the show-cause notice and various proceedings during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion, the principles of natural justice do no require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant . In the instant case the show-cause notice has relied upon various e-mails and other documents retrieved from the appellants premises and the officers concerned have only prepared the documents based on the details found in the consignment and from the documents retrieved from their computers and hence the cross examination does not serve any purpose. 8.1 Similarly, in the case of Manidhari Stainless Wire Pvt Ltd. vs. Union of India (supra), the Hon ble High Court of Andhra Pradesh held as follows: 27 . In paragraph 19, the Supreme Court extracted paragraph 12 of the decision in Kanungo Co. Eventually the Court held in paragraph 20 as follows : 20. Coming to the case at hand, the Adjudicating Authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice. However if required, noticee No. 2 can obtain additional set of copies of documents from SIIB, under prior intimation to undersigned. Accordingly the request for cross-examining all officers who assessed/audited/examined the impugned consignments cannot be acceded to. ii. Cross-examination of co-noticee Sri Reji Cherian : Apart from a broad statement that noticee No. 2 was seeking cross-examination of Sri Reji Cherian for rebutting the allegations of abetting evasion of duty by furnishing false and fabricated incorrect materials, no specific reasons or points have been attributed for seeking his cross-examination. Further noticee No. 2 has not given any specific fact that would emerge in his favour upon the cross-examination of Sri Reji Cherian. Further as Sri Reji Cherian is a co-noticee, this authority cannot direct him to be present for proceedings that may cause him to incriminate himself and therefore the request for cross-examination of Sri Reji Cherian cannot be acceded to. 2 . On a perusal of Ext.P5 order, and the reasons given by the respondent to deny the request of the petitioner for cross-examination, I do not find any illegality in the said order that would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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