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M/s. Goodrich Fairwell Exporters, Mr. Nazim Siraj Hamid & Others Versus Union of India & Others, Commissioner of Customs (Import)

2016 (4) TMI 766 - BOMBAY HIGH COURT

Validity of Tribunal's order - Non compliance with principles of natural justice and made error in not reading into evidence the opinion of Indian Institute of Technology though a copy of its report was on its file - Held that:- Tribunal's order is vitiated for want of consideration of a vital and valid ground of appeal i.e. non compliance with principles of natural justice and a patent error in not reading into evidence the opinion of Indian Institute of Technology though a copy of its report w .....

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of Motion No. 755 of 2013, Notice of Motion No. 1108 of 2014, Notice Of Motion (Appeals) No. 1432 of 2013 - Dated:- 11-4-2016 - S. C. Dharmadhikari And G. S. Kulkarni, JJ. For the Petitioner : Mr.R.V.Desai, Senior Counsel with Mr.Rohit Pardeshi i/b. Mr.Rakesh K.Singh For the Respondent : Mr. Pradeep S.Jetly with Mr.Jitendra B.Mishra, Mr.Arshad Hidayatullah, Senior Counsel i/b. M/s.Kachwala Misar ORDER P. C. 1. At the hearing of these Notices of Motion, we had indicated to the parties that the Co .....

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statements were never given to the Appellant either along with show cause notice or at any time thereafter. (b) Whether the Tribunal erred in its finding that there was no substance in the grievance about total non application of mind by the adjudicating authority so far as its failure to consider the IIT report on the ground that there was no evidence that the appellant had submitted IIT report to the Ld. Commissioner though the Ld. Commissioner refers to the IIT report in his order. 3. We are .....

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ave heard the learned Senior Counsel appearing for these parties and Mr.Jetly, learned Counsel appearing for the Revenue. 6. The brief facts are that the deceased had imported 3500 metric tons of goods described more particularly in paragraph (3) of the Memo of Appeal. It is his claim that the consignments were examined by proper Officers of the Customs and cleared on payment of appropriate Customs duty. However, the Special Investigation and Intelligent Branch of the Customs Commissionerate at .....

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nd forwarded to the Chemical Examiner, and the investigation, then, resulted in the statement of the deceased being recorded. Though the consignment was cleared under a Bill of Entry dated 22nd March,2005, a notice to show cause was issued by the Deputy Commissioner of Customs attached to Special Investigation and Intelligent Branch dated 2nd June,2006. The Appellants through the Advocate replied to this notice and sought copies of the documents, more particularly, mentioned therein. He also sou .....

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8. Two grounds were urged and one of which was non compliance with principles of natural justice. 9. These grounds having not been accepted that the Tribunal's order dated 11th June, 2009 is impugned in this appeal. 10. Both the learned Senior Counsel Mr.R.V.Desai and Mr.Arshad Hidayatullah urged that the Tribunal failed to apply its mind to a very important issue and which was squarely raised. The Tribunal referred to these grounds in paragraph (2) and eventually concluded that the copy of .....

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n is also referred. Yet, the Tribunal finds that there is no necessity of supplying copy of such statement nor has it resulted in miscarriage of justice. That reasoning and by attributing the knowledge of the contents of the statement to the Appellant's predecessor-in-title that the first ground was rejected. 11. Then comes the next and more important ground based on which the Appellants submitted that if there was a report of IIT and which was indeed on file, then, at least that should have .....

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at, the report was filed and which report discloses that the goods imported by the Appellant's predecessor were 'industrial soap flakes Grade II' and not 'soap noodles'. Paragraph 18 of the Tribunal's order refers to the contents of the letter dated 3rd July,2008 and the report of the IIT. 13. However, the Tribunal, then, refers to letter dated 31st March,2007 as well to conclude that the records nowhere disclose any copy of such report having been furnished alongwith the .....

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ideration thereof can never be fatal in the opinion of the Tribunal. 14. This Court admitted the appeal after a prima facie view and taken from the contents of the Memo of Appeal. At the hearing of this appeal, we indicated to both sides that calling and summoning the original records would take care of the whole issue and controversy. If the original records and from the file of the Tribunal as also the Adjudicating Authority are summoned, they would indicate whether the Appellants at all had s .....

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as above, there was indeed a copy of the report of IIT supplied to the Adjudicating Authority. 16. This submission is countered by Mr. Jetly, learned Counsel appearing for the Revenue and submitting that though a letter was issued addressed to the Adjudicating Authority, the report stated to be accompanying it, was not in his file but with another section in the Customs Department. 17. We are not impressed by this submission of the Revenue. We have perused the file and the original records, we .....

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bai for test. However, it is requested to obtain and forward a copy of the test report to the same in compliance with the order in appeal. 18. We do not see why the Revenue sought such an information. 19. Apart from the fact that on 8th June,2010 the predecessor-in-title of the Appellants also sought this information and particularly with regard to the test report from IIT and was informed that no record of the Test Report of IIT is available in the adjudicating file, it is evident that this rep .....

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n the parties. We are not concerned with the correctness of the replies that were given to the applications under the Right to Information Act,2005. Once it is not seriously disputed that such a report is in existence and duly forwarded to one Section in the Commissionerate, then, larger interest of justice demands that the Tribunal should have allowed the parties to refer to it and if the Assessee desires to rely on it, allow it to so rely. 21. What would be the consequence flowing from such re .....

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rial. To our mind, when the report relied upon by the Revenue and the one produced by the Assessee contain different conclusions and observations and there is divergence of opinion between the experts in the field, then, all the more the prejudice is established and proved. 23. We are of the firm opinion that the Tribunal's order is, therefore, vitiated for want of consideration of a vital and valid ground of appeal referred by us above. That ground was squarely raised in the Memo and presse .....

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