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TMI Blog2025 (2) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... d Others [ 1972 (2) TMI 35 - SUPREME COURT] wherein the Coordinate bench of this Court after analysing the said judgment observed that if any information is received from a statutory authority and an adjudicating process is initiated, there is nothing in law which compels the information provider to be involved in the judicial proceedings or warrant him/her for cross examination. In the above decision, it was also observed as to why the matters cannot be also relegated to CESTAT for cross examination, as the parties would be deprived of their right in the Appellant forum if the findings of the Additional Commissioner are affirmed. In this case,the CESTAT has followed a curious course where in respect of one of the Appellants, despite the right of cross examination having not been given, the penalty has been upheld and the appeal has been dismissed by CESTAT. However, in case of the other party i.e., Sunil Aidasani, the exact opposite approach has been adopted by CESTAT in the same case. Such discrimination between two similarly placed persons would not be possible. Conclusion - This Court is of the opinion that in order to ensure that there is compliance of Section 138(B) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration of goods and import of prohibited goods. The said five firms are: S.No. Name of the Company & Address IEC No. Director/Prop./Partner 1. M/s B.M. International F-9, Sagar Pur West, New Delhi 0514098171 (i) Inder Preet Singh Bhalla (ii) Manish Kumar 2. M/s Preet International F-9, Sagar Pur West, New Delhi 0512072744 (i) Inder Preet Singh Bhalla (ii) Manish Kumar 3. M/s Bhalla Enterprises Shop No. 8, DDA Market, Vikas Kinj, Vikas Puri, N. Delhi 0505065649 Inder Preet Singh Bhalla 4. M/s Manish & Bhalla International D2/2, D2 Block, Jeewan Park, Pankha Road, N. Delhi 0511076126 (i) Inder Preet Singh Bhalla (ii) Manish Kumar 5. M/s K. M. Enterprises F-9, Sagar Pur West, New Delhi 0513091882 Manish Kumar 5. A detailed investigation was conducted and various persons were found to be involved in the said imports running into 19 containers without any Bill of Entry, except for two containers. After analysing the role of various parties, the order in original imposed penalties against various persons including the firms. The said order reads as under: "A. In respect of M/s B.M. International, F-9, Sagar Pur West, New Delhi and its partners Shri Inder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partners Shri Inderpreet Singh Bhalla and Shri Manish Kumar- (i) I hereby reject the declared value of the goods imported by them in 6(Six) Containers i.e. Container No. HDMU6566450; Container No. NYKU4808510; Container No. DRYU9508818; Container No. HDMU6362138; Container No. NYKU4136740 and Container No. TRLU7440117, and re-determine the same as Rs 33,33,43,347/- as detailed in Annexure-'D,E,F,G,H & l' to the SCN, in terms of Rule 5 and Rule 9 (as applicable) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962 (ii) I order confiscation of all the goods imported in the said 6(six) Containers i.e. Container No. HDMU6566450; Container No. NYKU4808510; Container No. DRYU9508818; Container No. HDMU6362138; Container No. NYKU4136740 and Container No. TRLU7440117 having assessable value of Rs 33,33,43,347/-(including restricted items i.e. fire works (6.092 MT) valued at Rs. 1,21,84,000/-), as detailed in Annexure-D,E,F,G,H & I' to the SCN under Section 111 (d), (f). (i). (l) & (m) of the Customs Act, 1962. I give an option to them of redemption of these goods (other than restricted items ie. fire w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Aggarwal: Admittedly, he was the indentor in China and would connect buyers from India and the sellers from China and when the deal is struck, he would receive commission for his services. 18. However, as his statements indicate, his role does not end with placing orders. After the goods have been shipped, he would collect the Bills of Lading from Bhalla and give them to the CHA to get the goods cleared and further to get the delivery order and obtain the goods from the Shipping Line. Evidently, as the person who placed the orders and got the goods shipped, Sushil Aggarwal must be fully aware of what was actually bought and what was mentioned in the Bills of Lading and that prohibited goods were bought and shipped but were not declared in the Bill of Lading. 19. The role which he played did not end there. He would follow up the movement of the containers and after they have been cleared, he had even accompanied the goods upto the godown of the importer at Sitapur where Manish would take over and distribute the goods to the buyers. Manish would distribute them either on instructions of Bhalla or on the instructions of Sushil Aggarwal. 20. After Manish had sold the goods, Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i in CUSAA No.38/2025 are before the Court. 9. Mr. Jain, ld. Counsel appearing for Mr. Sushil Aggarwal submits that the CESTAT has discriminated between his client and Mr. Sunil Aidasani as the appeal of Mr. Sunil Aidasani was allowed however Mr. Sunil Aggarwal's appeal was dismissed. 10. The Department argues the same but to the contrary that in case of Mr. Aidasani, the appeal could not have been allowed due to non-compliance of Section 138 (B) of the Act. Analysis and Conclusion 11. The short question in the present appeals is therefore whether an opportunity ought to be given to both the Appellants before CESTAT to cross examine Mr. Bhalla in terms of Section 138(B) of the Act. 12. Reliance is placed upon the decision in Shri Krishan Kishor Aggarwal vs Additional Commissioner of Customs, 2019:DHC:2228-DB wherein a coordinate bench of this Court observed that if a statement of the co-accused becomes the basis of an impugned order, then denial of cross examination of such witnesses will violate the principles of natural justice. The right of cross examination was thereafter granted after discussing the decision in Kanungo & Co. Vs. Collector of Customs, Calcutta and Others - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners. The Additional Commissioner of Customs shall proceed to hear the petitioners and also grant appropriate and sufficient opportunity to cross-examine the witnesses, whose cross-examination was sought but denied in the original proceedings, which culminated in the impugned original order. The parties shall be present before the Additional Commissioner on 15th May, 2019, who shall then proceed to act in accordance with law." 13. In the above decision, it was also observed as to why the matters cannot be also relegated to CESTAT for cross examination, as the parties would be deprived of their right in the Appellant forum if the findings of the Additional Commissioner are affirmed. 14. In this case,the CESTAT has followed a curious course where in respect of one of the Appellants, despite the right of cross examination having not been given, the penalty has been upheld and the appeal has been dismissed by CESTAT. However, in case of the other party i.e., Sunil Aidasani, the exact opposite approach has been adopted by CESTAT in the same case. Such discrimination between two similarly placed persons would not be possible. 15. Accordingly, this Court is of the opinion that in o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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