TMI Blog1990 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... fine of Rs.10,000/- only. 3. It is the department case that before the goods could be physically released a complaint was received by the Customs from M/s. Charu International in which they stated inter alia that it appeared that somebody had used their name and imported the goods and was trying to clear the same from Customs. 4. As such the Customs preventive kept survillance and when one Shri Rajeshwar Sharma approached the cargo unit with the documents they interrogated Shri Sharma. It is the department contention that Shri Sharma said that the goods actually belonged to one Shri Sunil Desai of Bombay who had imported the same in the name of M/s. Charu International New Delhi; and Shri Sunil Malhotra, an employee of the Customs House clearing agent Shri R.C. Verma, Shri S.K. Nayyar and Shri S.R. Parashar all employees in the Ministry of Finance, were concerned in the clearing of the consignment. 5. It was further revealed that Shri Sunil Desai was expected from Bombay on 17.11.87 and another similar consignment was also expected to arrive from Singapore at Delhi Airport. 6. The officers apprehended Shri Sanjeev Malhotra and Shri R.C. Verma on 17.11.87; Shri Sunil Desai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as well which had already been confiscated but allowed to be redeemed on payment of fine of Rs.10,000/- by them and the duty and fine in respect of which had in fact already been paid. This was not permissible under law. 18. The learned counsel also pointed out that as per department s case itself some information was received after the adjudication of the first consignment and accordingly they had made further enquiries and it appears that the matter was placed before the executive Collector who thereupon exmained the Order No. 2040/87 dated 17.11.87 passed by Shri K.J. Chowdry, Asst. Collector against M/s. Charu International. It appears to the Collector that the order was void ab initio and therefore he passed an order under 129D(2) and directed Shri K.J. Chowdry to move an application in terms of Section 129D(2) and (4) i.e. to file an appeal before Collector (Appeals). 19. This order of the executive Collector Shri M.K. Jutshi is dated 24.12.87 (Page 139 of paper book). 20. This order shows that an appeal was contemplated against the order of the Asst. Collector. However, instead of complying with this order, the Asst. Collector issued the impugned show cause notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant facts into account, without proper application of mind and without observing principles of natural justice. The impugned order does not state as to why their request for adjournment was not granted. That apart, the order does not discuss the issue involved and does not amount to a speaking order. 27. The order was therefore bad in law and was required to be set aside. 28. The learned DR stated that after the Asst. Collector has passed the adjudication order, with reference to the first consignment a complaint was received from M/s. Charu International and therefore surveillance was kept and as a result of enquiry and investigation it was found that there was a conspiracy involving all these appellants who have been penalised for the conspiracy, to clear the consignments through Customs in violation of the Customs Law as stated in the show cause notice and the order in original. 29. The show cause notice was issued to all the persons concerned and an opportunity for personal hearing was granted but they did not avail of the same. In the circumstances the Addl. Collector had to pass the order ex parte. 30. He however accepts that the goods confiscated by the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to deliver the show cause notice at his residence but the postman did not deliver and he got the show cause notice after six months and gave a reply. The adjournment requested for was not allowed and the Addl. Collector passed the ex-parte order. 39. It was reiterated on behalf of all the appellants that the principles of natural justice were not duly observed and the order was a non-speaking order and was bad in law. 40. The learned SDR drew attention to the operative portion of the order in original and stated that opportunity for personal heading has been granted but not availed of by the appellants. He emphasised that the goods having been imported in violation of the Customs Act were liable to confiscation and the appellants were liable to penalty as the persons concerned. 41. We have considered the submissions of all the appellants and the respondent. 42. We find that the submissions of the learned counsels have a lot of force inasmuch as apparently two orders-in-original have been passed in respect of the one and the same consignment (namely the first consignment). This was obviously improper. 43. It is really surprising that the learned Asst. Collector who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants in their respective reply to the show cause notice. 49. It is also not clear as to why he has not even referred to the statements of various appellants and not discussed the aspects of the alleged admissions and denials. It is noteworthy that as the matter stands now, all the appellants have denied the charges and denied the ownership of the goods and stated that they are not concerned with the goods in any manner. Shri Sunil Desai has claimed that his inculpatory statement was recorded while he was under detention and that he had retracted the statements at the first opportunity but there is no mention about these aspects in the order of the Addl. Collector. Similarly it is not clear as to on what basis the Addl. Collector has passed orders in respect of the other appellants. 50. It is also surprising that while personal hearing was offered no real or effective opportunity of personal hearing was granted to anyone of the appellants. 51. It is well-established that giving an opportunity to the appellants is a very serious and important matter and is not intended as merely a high chance or an eyewash. Therefore a perfunctory hearing has no meaning. 52. It is noteworth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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