2011 (6) TMI 258 - AT - Customs

Penalty - Section 112(a)of the Customs Act 1962 - tempering of advance licenses - penalties stands imposed upon the appellants who are partners/ directors CHAs or their employees and brokers for obtaining licenses or brokers in selling the duty free imported goods - set-aside the impugned order and remand the matter to adjudicating authorities to supply the documents i.e. tempered advance licenses to the appellants and to allow them cross-examine the officers wherever possible as we are aware of the practical difficulties of the officers not being available - As we have already remanded the matter on this ground would also like the Commissioner to take into consideration the latest decision of the Hon ble Supreme Court in the case of Saiyed Ali (referred supra) as also the Board circular dated 15.4.2011 and/ or any subsequent development on the above point of jurisdictions -

Issues Involved:
1. Imposition of penalties under Section 112(a) of the Customs Act, 1962.
2. Allegations of aiding and abetting unlawful imports.
3. Non-supply of tempered advance licenses.
4. Request for cross-examination of customs officers.
5. Jurisdiction of DRI to issue show cause notices.

Detailed Analysis:

1. Imposition of Penalties under Section 112(a) of the Customs Act, 1962:
The Commissioner of Customs, Kandla, imposed penalties on various appellants, including partners, directors, CHAs, their employees, and brokers, for obtaining licenses or brokers in selling duty-free imported goods. The penalties ranged from Rs. 30,000 to Rs. 1 crore.

2. Allegations of Aiding and Abetting Unlawful Imports:
The appellants were alleged to have aided and abetted importers in the unlawful importation of HDPE and PP granules against tempered advance licenses. The licenses, originally issued for different goods like adhesives or craft papers, were allegedly tampered with to import granules. The appellants argued that there was no independent evidence to hold them guilty except for the alleged tempering of documents.

3. Non-Supply of Tempered Advance Licenses:
The appellants contended that during de-novo proceedings, they were supplied with original advance licenses instead of the alleged tempered ones. They argued that without examining the tempered documents, they could not defend themselves effectively. The Tribunal agreed that the tempered advance licenses, which were relied upon in the show cause notices, should be supplied to the appellants.

4. Request for Cross-Examination of Customs Officers:
The appellants requested the cross-examination of customs officers who cleared the goods based on the tempered documents. They argued that these officers could provide insights into the verification, scrutiny, and assessment of the documents. The Tribunal noted that while cross-examination is not a matter of right, it should be considered based on the facts and circumstances of each case. The Tribunal directed the adjudicating officer to allow cross-examination wherever possible, acknowledging practical difficulties such as the unavailability of officers.

5. Jurisdiction of DRI to Issue Show Cause Notices:
The appellants cited the Supreme Court decision in Commissioner of Customs vs. Saiyed Ali, which questioned the jurisdiction of DRI to issue show cause notices. They argued that the show cause notices issued by DRI were without jurisdiction. The Tribunal directed the adjudicating authority to consider the latest Supreme Court decision and the Board circular dated 15.4.2011, along with any subsequent developments on the jurisdiction issue.

Conclusion:
The Tribunal set aside the impugned orders and remanded the matter to the adjudicating authorities with specific instructions:
1. Supply the tempered advance licenses to the appellants.
2. Allow cross-examination of customs officers wherever possible.
3. Consider the latest Supreme Court decision and Board circular on the jurisdiction issue.
4. Re-examine the penalties imposed on brokers, considering their knowledge of the alleged tempering.

The appeals were disposed of in the above manner, ensuring a fair opportunity for the appellants to defend themselves comprehensively.

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