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2017 (10) TMI 305 - AT - CustomsRectification of Mistake - Ld. Counsel for the applicant argued that the Tribunal in its order dated 03/01/2017 failed to consider certain issues which have resulted in apparent error in the said order - the Tribunal order does not give any specific findings on the first ground of appeal, which relates to non-supply of certain documents relied in the order by the Commissioner. These documents are the webpage of Citizen Watch Company and the examination report of customs to the appellants. These were not relied upon documents in the Show Cause Notice but the Commissioner has relied upon the same in his order. We find that this was the very first ground of appeal and the same has not been dealt with in the order of tribunal dated 3.1.17 - Held that - o evidence of supply of the said Bill of Entry containing the Examination report was given by the revenue. We therefore come to the conclusion that the said documents have not been supplied to the appellant and therefore their assertion, in so far as it relates to non-supply of documents is concerned, is correct. Reliance on these documents without supplying the same to the appellant has obviously resulted in failure to follow the principles of natural justice on the part of the Commissioner. If this non supply of documents has resulted in an apparent error in the order of the Tribunal dated 03/01/2017 or the order of the Commissioner? - Held that - The Commissioner comes to a conclusion that the quantity mentioned in the invoices of K Line corresponds to the quantity mentioned in the invoices produced by the appellant relying on these documents. The value is thereafter arrived at using the quantity mentioned in the invoices produced by the appellant and the value mentioned in the invoices obtained from K Line. The charge of undervaluation itself is proved relying on these documents which were not supplied to the appellants. This issue has not been dealt in the order of Tribunal dated 3.1.17. Failure to deal with the issue of cross examination of Shri K Miwa - Held that - It is seen that the appellants have raised this issue in their appeal before Tribunal as well. The order of Tribunal does not deal with this issue specifically. It is seen that the Commissioner has denied the request of Cross Examination on the ground that it is not a primary evidence but only corroborative evidence. This cannot be a valid ground for rejection of request for cross examination. This becomes more important in view of the fact that the letter of Shri K Miwa is based on investigations carried out and not from his personal knowledge, and that too in respect of an event more than five year old. Revenue has contended that cross examination has not been offered in terms of Section 138 B of the Customs Act 1962 as the person is not based in India. This letter of Shri K Miwa is not a statement given before Gazetted officer but still a demand of cross examination has to be tested in terms of Section 138 B of the Customs Act 1962. Even revenue has argued on the same lines - No such examination is forthcoming from the order of the Commissioner. No examination in terms of said section has been done by Commissioner. This issue was raised by the appellants in their appeal as ground I thereof. The order dated 3.1.17 does not deal with this aspect. ROM application allowed - the error needs rectification - appeal allowed by way of remand.
Issues Involved:
1. Non-supply of certain documents relied upon in the order by the Commissioner. 2. Denial of cross-examination of a key witness, Shri K Miwa. 3. Discrepancies in the value and quantity of goods as mentioned in various documents. Issue-wise Detailed Analysis: 1. Non-supply of Certain Documents: The applicant argued that the Tribunal failed to consider the violation of principles of natural justice due to non-supply of certain documents, specifically a printout from the website www.citizen.co.jp and the examination report on Bill of Entry No. 462861. These documents were not included in the Show Cause Notice (SCN) and were not provided to the applicant before the adjudication process. The Tribunal acknowledged that the webpage of Citizen Watch Company was not a relied-upon document in the SCN, and its reliance without notice to the applicant constituted a failure to follow the principles of natural justice. The examination report, although claimed by the revenue to be available for inspection, was not supplied to the applicant, as there was no evidence of its provision. This non-supply of documents resulted in an apparent error in the Tribunal's order dated 03/01/2017, as the Commissioner relied on these documents to reconcile discrepancies in the quantity of imported goods, which was crucial to the case. 2. Denial of Cross-examination of Shri K Miwa: The applicant contended that the denial of cross-examination of Shri K Miwa, whose emails were relied upon by the Commissioner, was not properly addressed by the Tribunal. The Commissioner denied the cross-examination on the grounds that Shri Miwa's correspondence was corroborative evidence and not primary. The Tribunal found this reasoning insufficient, especially since Shri Miwa's letter was based on investigations rather than personal knowledge and pertained to events from five years prior. The Tribunal also noted that the denial of cross-examination was not justified under Section 138B of the Customs Act, 1962, as no examination in terms of this section was conducted by the Commissioner. This issue was raised by the appellants but not addressed in the Tribunal's order dated 03/01/2017, leading to an error apparent in the order. 3. Discrepancies in Value and Quantity: The applicant pointed out that while the SCN proposed a value of ?99.23 per piece for 2105 calibre, the Commissioner's order held the value to be ?100.22. Additionally, the Tribunal's observation that quantities in the air waybill and invoices of K Line Air Services did not match the appellant's declarations was contested by the applicant, who argued that the air waybills did not show quantity and description. The Tribunal found that the Commissioner reconciled the difference in quantity by relying on the examination report and the webpage of Citizen Watch Company, which were not supplied to the appellants. This reconciliation was crucial to the Commissioner's findings on undervaluation, which were not addressed in the Tribunal's order, resulting in an error apparent. Conclusion: The Tribunal concluded that the failure to address the non-supply of documents and the denial of cross-examination resulted in errors apparent in the order dated 03/01/2017. Consequently, the order No.A/85063/17/CB dated 03/01/2017 was modified, and the appeal was allowed by way of remand, keeping all issues open for reconsideration.
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