TMI Blog2016 (2) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... be sustained and would need to be remanded for de novo adjudication, we refrain from expressing any view with regard to the liability of confiscation of the impugned goods seized at Pamposh Enclave. - Matter remanded back - Decided partly in favor of appellant. - Application No. C/MISC/51247/2009-CU[DB] In Appeal No.C/485/2009-CU[DB] - Final Order No.50153/2016 - Dated:- 3-2-2016 - MR. G. RAGHURAM, PRESIDENT AND MR. R.K. SINGH, MEMBER (TECHNICAL) For the Petitioner : Mr. A.N. Haksar, Sr. Advocate, Mr. PK Ram, Advocate And Mr. Tarun K. Banga, Advocate For the Respondent : Mr. Amresh Jain, DR, Mr. Rajshekhar Rao, Advocate, Mr. Sameer Dawar, Advocate And Mr. Zehra Khan, Advocate ORDER PER MR. R.K. SINGH : Appeal is filed against Order-in-Original dated 25.04.2009 in terms of which the following was ordered:- (i) Absolute confiscation of 6,650 coins, one silver kamar band (waist belt) and 18 copper stamps/ seals declared to be antiquities under Section 24 of the Antiquities and Art Treasures Act, 1972 (hereinafter referred to as AAT Act ), under Section 113 (d) and 113(i) of the Customs Act, 1962. Six cons which are declared to be non-antiquities unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any opportunity to cross-examine Mr. Hari Manjhi, who gave the opinion under Section 24 of AAT Act about the impugned goods being antiques, Mr. Dharamvir Sharma, Superintending Archaeologist, ASI, who gave his opinion at the time of seizure regarding the impugned goods being antiques and the panchas who signed the seizure memo at the airport and denial of their cross-examination was violative of principles of natural justice. Mr. Manjhi s cross-examination was required for several reasons including that it was not clear as to whether the coins which Mr. Manjhi examined were the same as the ones which were seized and whether Mr. Manjhi was authorised by Director General Archaeological Survey of India as required under Section 24 of AAT Act. There was no evidence given that Mr. Manjhi was authorised by the Director General, ASI in the absence of which his report will have no validity. Revenue failed to discharge the burden of proving that the items that were seized from the appellant were the same as those sent to ASI for examination and the chain establishing a continuous link was missing. (iv) As the basis for holding the impugned goods to be antiques was the report of Mr. Manjhi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore cross-examination will not serve any purpose. He also argued that in all cases cross-examination of a witness may not be necessary and relied on the decision of the Supreme Court in the cases of Kanungo Co. Vs. Collector of Customs, Calcutta [1983 (13) ELT 1486 (SC)] and Dharampal Satyapal Ltd. Vs. CCE [2015 (8) SCC 519] to demonstrate as to how the law on natural justice has evolved and every violation of principles of natural justice need not result in setting aside an order, unless and until, prejudice has been established by the aggrieved party, which is missing in the instant case. He, then proceeded to advance the arguments in respect of the coins seized at the residence of Mr. Rastogi at Pamposh Enclave, New Delhi. He submitted that the appellants act of collecting/buying coins from various parts of India and sorting them out at Pamposh Enclave for taking them out of India in a phased manner amounted to attempt to export under the Customs Act, 1962 and cited the case of State of Maharashtra Vs. Mohd. Yakub and Others [1980 (3) SCC 57]. He referred to the appellants and Mr. Rastogi s statements under Section 108 of the Customs Act, 1962 to demonstrate as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant or allowed to be cross-examined by the person concerned in respect of statements made before customs authorities. The ld. advocate for Revenue also extensively relied upon the judgement of Supreme Court in the case of Dharampal Satyapal Ltd. Vs. CCE (supra) in support of his opposition to permit cross-examination of Mr. Manjhi and others. In that judgement Hon'ble Supreme Court essentially held that (i) there may be situations where it is felt that fair hearing would make no difference-meaning that a hearing would not change the ultimate conclusion reached by the decision-maker in such situations, fair procedures appear to serve no purpose since the right result can be secured without according hearing/cross-examination. (ii) It may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. (iii) The validity of the order ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t when duty demand against an assessee is based on opinion given by an expert and his cross-examination is requested, it has to be allowed. As opinion given by the technical expert is only an opinion evidence and its evidentiary value has to be ascertained by permitting his cross-examination. (emphasis added) Similarly documents recovered from the premises of M/s. Manu Steels which are one of the main corroborative, evidence are in the nature of third party documents, and, therefore, in view of Apex Court s judgment in the case of Kishanchand Chellaram v. CIT, reported in 1980 (Supp.) SCC-660, the cross-examination of Sh. S.K. Pansari from whose premises these documents had been recovered was necessary, more so when the same had been requested and as such the denial of his cross-examination has resulted for denial of natural justice. The judgment of the Apex Court in case of Kanungo Co. (supra), relied upon by the Department and wherein it was held that natural justice is not violated if cross-examination of the person giving information is not allowed is not applicable to the facts of the case. The impugned order, therefore, is not sustainable. The same is set aside and the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examination even when such denial causes prejudice to the person seeking cross-examination. We, thus hold that not permitting cross-examination of Mr. Manjhi is grossly violative of the principles of natural justice and therefore the impugned order is not sustainable. However, we may add here that violation of principles of natural justice is a curable defect [as was argued by ld. advocate for Revenue citing the Delhi High Court judgement in case of Shahid Balwa Vs. Directorate of Enforcement (supra)] which can be cured/ordered to be cured in de novo proceedings. 7. As regards the cross-examination of the panchas who signed the seizure memo at the airport, we have perused the seizure memo and find that the same has been signed by the appellant also. Further, the appellant is not contending that the contents of the seizure memo are in any way questionable. Therefore cross-examination of the panchas will in no way further the cause of justice. Also, in the absence of the cross-examination of the panchas, the appellant is not prejudiced in any way. Accordingly, we are of the view that the appellant has not made out a case for cross-examination of the panchas and this view is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable to confiscation even if (though not admitted) those were antiques and were to be exported in the month of September, 1994 as those would not satisfy the requirements of Section 113(d) of Customs Act, 1962 which requires that the goods to be liable to confiscation should be attempted to be exported or brought within the limits of any customs area for the purpose of being exported contrary to any prohibition imposed by or under Customs Act, 1962 or any other law for time being in force. Ld. advocate for Revenue referred to the judgement Madras High Court in the case of Ranjit Exports Pvt. Ltd. Vs. CC, Madras in WP No.7061/1984 to plead that the statements of Dr. Flynn and others clearly bring out that the goods seized at Pamposh Enclave were collected from various parts of India and were stored there with clear intention to export and therefore would be covered within the purview of Section 113(d) of Customs Act, 1962. Ld. Advocate for Revenue also referred to the judgement of the Supreme Court in the case of State of Maharashtra Vs. Mohd. Yakub and Others (supra) to elucidate the scope of the word attempt to plead that the impugned goods seized at Pamposh Enclave would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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