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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.
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