2021 (3) TMI 439 - MADRAS HIGH COURT - Customs

Head Note / Extract:
Maintainability of petition - alternative remedy of appeal present or not - Import of branded goods in the name of fictitious entities - Misdeclaration and undervaluation - rejection of request for cross examination of the witness - petition dismissed on the ground that there is no acceptable explanation given by the appellant for not having resorted to the alternate remedy of filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal - import of such imitation stones on monetary consideration - Levy of penalty - whether order is violative of Article 21 of the Constitution of India? - violation of the principles of personal hearing (natural justice) or not HELD THAT:- The outcome of the investigation was that Mr.Zahir Hussain was the actual owner of the goods imported by M/s.Abi Sathiya Enterprises and Mr.Zahir Hussain, in connivance with the appellant and Mr.T.Suresh, had imported branded glass chatons in the guise of artificial stones by grossly under invoicing the value of the consignment by misusing IECs, issued in the name of M/s.Abi Sathiya Enterprises. Similar is the outcome of the investigation in the other case as well - The reply given by the appellant has been dealt with by the adjudicating authority from paragraph 80 of the Order-in-Original No.640 of 2012 and from paragraph 40 of the Order-in-Original No.639 of 2012. In the reply/representations, which the appellant had sent, he has not been specific as to why he requires cross examination because, the appellant has not brought out any independent facts or evidence as his defence to the allegation made against him in the show cause notice. The reply is a bald denial of the entire allegations stating that the appellant is not involved in the import of the said items - during the course of investigation and while considering the entire matter, the Adjudicating Authority has been able to bring out the facts as to how the appellant has impersonated himself, opened bank account in the name of a fictitious person, remitted customs duty by effecting cash payment in dummy bank accounts, opened in the name of an Enterprise and one Shri Rakesh Upadhaya. Therefore, the facts and circumstances of the case would clearly show that the request for cross examination is devoid of merits, lacks bonafide and rightly denied by the Adjudicating Authority. The appellant would seek to argue that the proceedings are vitiated on account of mala fide. If this is the case of the appellant, then there should be specific allegation against the named officers against whom, he alleges mala fide or bias. Admittedly, no such officer has been made a party to the writ petition. Therefore, the plea of mala fide exercise of power has to be definitely rejected. The request made by the appellant to cross examine few of the co-noticees, who were also involved in the transaction was rightly denied by the Adjudicating Authority and no prejudice has been caused to the appellant on the said ground. The reasons assigned by the Adjudicating Authority to deny cross examination, taking note of the factual situation, is well founded. That apart, the other co-noticees have not retracted their statements rendered by them under Section 108 of the Act, which is binding - the order passed by the Adjudicating Authority does not suffer from any error of law for interfering with the same. Appeal dismissed.