TMI Blog2013 (5) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... ocation of provisions of Sec. 9-D of the Act in a particular case by filing statutory appeal, which provides for judicial review clinches the issue in favour of the appellant. Thus set aside the impugned order and remit the matters to the Tribunal for a fresh consideration. - CUS.A.A. 7/2010, CUS.A.A. 10/2010 & CM No. 21740/2010, CUS.A.A. 12/2010 & CM No. 21751/2010, CUS.A.A. 13/2010 & CM No. 21754/2010 - - - Dated:- 12-4-2013 - Badar Durrez Ahmed And R. V. Easwar,JJ. For the Appellants : Mr C. Hari Shankar and Sh. S. Sunil. For the Respondent : Mr.Kamal Nijhawan, Senior Standing Counsel with Mr. Sumit Gaur, Advocate. JUDGMENT Badar Durrez Ahmed, J. 1. These appeals are directed against the order dated 15th March, 2010 passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi. In all these appeals, the common issue that has been sought to be raised by the appellants is that the appellants have made a request of crossexamination of the persons whose statements have been referred to in the show-cause notice dated 30th April, 2004 as also relied upon by the Commissioner in the Order-in-Original dated 30th November, 2005 as also by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statement of Shri. Gulab Singh, Driver (Para 23 if SCN). 13. Statement of Shri. Basant Sharma, owner of the truch (Para 24 of SCN). 14. Statement of Shri. Tutul Mondal, Driver (Para 25 of SCN). 15. Statement of Shri. Gautam Chatterjee (Para 26 of SCN). 16. Statement of Shri. Yusuf Khan, Driver (Para 27 of SCN). 17. Statement of Shri. Gajender Singh Uniyal (Para 28 of SCN). 18. Reference to DRI, Chennai letter dt. 14.11.2003 (Para 29 of SCN). 19. Statement of Shri. Mohan Lal Thapar (Para 31 of SCN). 20. Letter dt. 3.2.04 of Shri. Suresh Pal Gupta of Dubai (Para 32 of SCN). 21. Statement of Shri. Dilip F. Mehta (Para 34 of SCN). 22. Statement of Shri. Kamlesh Jain, Chennai (Para 37 of SCN). 23. Enquiries with Dept. of Commerce, DRI, Chennai (Para 37 of SCN). 24. Letter dated 8.03.04 from Asma Noor, Executive Secretary (Para 39 of SCN). 25. Statement of Shri. Kapur Chand (Para 40 of SCN). 4. From the above, it is apparent that 21 statements of different individuals have been referred to in the show-cause notice. It is also clear from paragraph 6 of the very same reply dated 05.06.2004 to the showcause notice that a request for summoning the persons who ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 67 of the Order-in-Original. 7. The appellants were aggrieved by the Order-in-Original dated 30.11.2005 and, therefore, they preferred appeals before the Tribunal. In the said appeals, specific points with regard to denial of opportunity of cross-examination were also taken. However, the Tribunal by virtue of the impugned order dated 15.03.2010 brushed aside the said point in the following manner:- 64. Overseas enquiry was not challenged to be motivated. Result of enquiry remained uncontradicted except bald plea of denial of cross examination when the goods recovered by search operation proved motive of appellants as well as their ill will and part of goods smuggled was proved to be without proof of import. The case of mis-declaration was proved beyond doubt by cogent evidence gathered by Investigation. Natural justice did not appear to have been violated when cogent evidence brought out by Investigation left no doubt about involvement of the group promoting smuggling through various conduits. The appellants lead their defence and their case was in entirety considered by the learned Adjudicating Authority considering their reply to show cause notice. When the Investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence as well as concealed nature of smuggling activities were forceful. Therefore, there is no scope to hold that the adjudication proceedings suffered from violation of natural justice when the unfair deal of appellant surfaced. Accordingly the citations made by the appellants in the course of hearing were misplaced by them who failed malafide of Investigation of the Investigation by any means was liable to be vitiated. 8. Another point which was raised in some of these appeals was that the show-cause notices were issued on 30.04.2004 and the Noticees were supposed to respond to the show-cause notice on the basis of the material available with the Noticees on that date. Even hearing in the matter was concluded on 14.10.2004. Yet, the Commissioner of Customs placed reliance on the subsequent report dated 20.07.2005 which was based on an investigation/enquiry conducted after the conclusion of the hearing on 14.10.2004. That report/documents pertaining thereto had not been supplied to the appellant in order to ascertain the response to the same. It was submitted that in the absence of the said report and documents, the appellants had been denied the valuable right to answer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.07.2004 contains the following information: "With reference to your letter of 10th May 2004, we are pleased to confirm that the certificate of origin referred to in your letter were issued by the Department of Commerce." In this matter, it would not be out of place to mention here that it was already been verified by DRI during investigations and clearly brought out in the Show Cause Notice that the three certificates of origin as mentioned hereinabove were forged documents: However, in view of the noticee's aforesaid fresh submissions, the matter was taken up by DRI to verify authenticity of the said correspondence, submitted to the Adjudicating authority, as the contents thereof appeared to be quite vague and misleading. Verification were conducted through Sri Lankan Customs. Sri Lanka Customs, after conducting verifications with Deptt. of Commerce, Sri Lanka, informed vie letter No. CIU/WROA/05/07 dated 20.07.2005 that the certificate of origin nos. CO/ISFTA/03/2748 and CO/ISFTA/03/3618 though issued by Deptt. of Commerce , Sri Lanka, have not been issued to M/s Aurea Industries Pvt. Ltd. but instead have been issued to M/s Celetron Ltd., Kandy, Sri Lanka for computer par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be relevant, for the purpose of proving, an any prosecution for an offence under this Act, the truth of the facts which it contains:- (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 11. We may straightaway say that the provisions of Section 9D of the Central Excise Act, 1944 are identical to the provisions of Section 138B of the Customs Act, 1962 which would be applicable in the present case. 12. Section 138B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding was otherwise justified or not can be taken up in the appeal. 14. The Division Bench also observed that though it cannot be denied that the right of cross-examination in any quasi judicial proceeding is a valuable right given to the accused/Noticee, as these proceedings may have adverse consequences to the accused, at the same time, under certain circumstances, this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in Section 9D of the Central Excise Act, 1944. The circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to crossexamine the persons whose statements are being relied upon even in quasijudicial proceedings. The Division Bench al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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