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TMI Blog2005 (4) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... on the transaction value for the consignment in question, it was not open to the appellant to challenge in the impugned order. It is contended on behalf of the appellant, on the other hand, that there was only waiver of show cause notice and personal hearing was not waived. 3.The appellant was engaged in the trade of electronic goods and had imported parts and components of VCD players vide Bill of Entry dated 26-6-2002. According to the department, it contained mis-declaration of value. On investigation, gross and wilful misdeclaration of value was found on the basis of the evidence of higher contemporaneous import value of identical goods, as per the case of the respondent. The ascertained CIF value, on the basis of contemporaneous import evidence of identical goods, appeared to be Rs. 16,46,050/- and the extent of under-valuation on the basis of the available evidence appeared to be Rs. 9,79,929.50 paise. The appellant is said to have admitted under-valuation and requested for waiver of show cause notice and personal hearing by the said letter dated 17-7-2002, according to the respondent. 4.In paragraph 6 of the order of the Commissioner it was noted that the importer had, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Customs, Tuticorin reported in 2001 (130) E.L.T. 897 was cited to point out that in paragraph 8 thereof it was held that even though the appellants therein had waived the show cause notice, the orders impugned had relied on a technical opinion and also an import made one year earlier for assessing the nature of the imported goods without giving effective opportunity to the appellants therein to submit their representation in the matter and, therefore, the orders impugned therein were against the principles of natural justice. (d) The Tribunal's decision in P.K. Goel New Delhi v. Collector of Customs, Delhi reported in 1983 (12) E.L.T. 648 was cited to point out that the order of the Assistant Collector was held to have been passed in breach of principles of natural justice and in violation of Section 124 on the ground that unless a person waives his right of personal hearing he has to be heard. It is quite clear from this decision that it does not lay down that despite a waiver a person can insist on hearing and on the contrary it contemplates the waiver of the right of personal hearing. 6.The learned authorized representative appearing for the Department argued th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contested the valuation and had merely stated that they accepted the value only for assessment purposes, they had taken the consequences of under-valuation and consequently the order of the concerned authority confiscating the goods was required to be upheld. 7. In the letter dated 17-7-2002 around which the contentions have revolved, it was categorically stated by the appellant that he had been informed by his Custom House Agent (CHA) to accept the loading on the transaction value for the consignment in question. It was then stated "......hereby I inform that I am ready to accept the loading and also do not want any show cause notice, while loading the value you may please take into the account contemporary price of the similar or the identical consignment, may be please taken into consideration". It is evident from this communication that the appellant clearly waived the show cause notice required to be issued under Section 124 of the said Act which reads as follows : "SECTION 124. Issue of show cause notice before confiscation of goods, etc. - No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiver of personal hearing by way of oral representation. The doctrine of waiver has no application in a situation where the person concerned requests for the grounds being orally communicated to him and wants the representation being orally made by him, because, the contents of the notice and the nature of opportunity requirements would even in that event stand satisfied and no question of waiver would arise, since, only the manner of communication of grounds and making of representation would be changed from writing to oral. 9.The provisions of Section 124 of the said Act embody the principle of natural justice of audi alterem Partem that no one shall be condemned unheard. The power of confiscation of goods under Chapter XIV has a drastic consequence of depriving a person of his property which by virtue of being confiscated would vest in the Central Government under Section 126 of the Act. The provisions of Section 124 have, therefore, been framed in a mandatory form and even the CBEC by its Circular No. 65/2000-Cus., dated 27-7-2000 exhorted all concerned in the context of Section 124, that the adjudicating authorities shall follow the principles of natural justice contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he forgoes the right given under Section 124 and allows the authority to proceed with the matter. In such a case, the notice cannot turn around after the order is made and contend that he was denied a reasonable opportunity of being heard before the order of confiscation was made. Therefore, when right to make a representation and be heard is waived by the noticee on receiving the notice which also informed him about the ground(s) on which it was proposed to confiscate goods, there would arise no question of any violation of the principles of natural justice because the waiver of hearing would be after having known the ground(s) and about his right to defend, as offered in the notice, and therefore, an intelligent waiver for which the concerned authority cannot be blamed. 12.The notice under Section 124 has its basis in the existence of the grounds for confiscation available in Chapter XIV of the Act. Without knowing the ground(s) on which the confiscation is proposed, it would not be possible to waive the right to make a representation and be heard. One must know why the opportunity of being heard is being given to him and to what is he supposed to respond in order to avoid con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the appellant clearly indicates that the appellant knew about the ground on which the confiscation would be proposed. The appellant in no uncertain terms requested the concerned authority not to issue the show cause notice and also requested him to enhance the value of the consignments by taking into account the contemporary right of identical consignments. The appellant, therefore, led the concerned authority into not issuing the show cause notice under Section 124 and required it to load the value of the consignment, as requested by the appellant. The question of confiscation in the context of the value of consignment could arise under clause (m) of Section 111 of the Act which, inter alia, provides that when any goods which do not correspond in respect of value or in any other particulars with the entry made under the Act in respect thereof, such goods shall be liable to confiscation. Therefore, when the present appellant showed his readiness to accept the loading of the value by the concerned authority, he was fully aware of the ground on which the confiscation could be made, because, such loading had a nexus with ground (m) under Section 111 under which the confiscation c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The requirement of Section 124 of issuing notice is not in the nature of issuing a public notice; nor any person other than the person against whom the proceeding is initiated has any right to such a notice. It is the right of notice to the person concerned, and the same can be waived by that person. Therefore, the ratio of the decision of the Supreme Court in Virgo Steels (supra) decided in the context of Section 28 of the said Act would be applicable with equal force even to waiver of notice required to be issued under Section 124 of the Act. In view of the settled legal position, as reflected in Virgo Steels (supra) the decisions of the Tribunal on which reliance is placed, to the extent they hold that despite the waiver of right to be heard under Section 124 hearing should nonetheless be given, being in conflict with the ratio of the said decision of the Supreme Court, ceased to be binding precedents. 16.For the foregoing reasons, the contentions raised on behalf of the appellants, cannot be accepted and we find no warrant for interference with the impugned order of the Commissioner which is valid and legal. The appeal is, therefore, dismissed. (Dictated and pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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