TMI Blog2017 (7) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority has dealt with in detail as to why such request is rejected by relying on certain case laws. In any event, as the Appellate Authority is also a fact finding authority, certainly, the petitioner is entitled to canvass before such authority as to how such denial of cross examination of those two persons, has resulted in affecting his interest. If the request for cross examination was not at all considered, then it is a different matter to say that there is a violation of principles of natural justice. On the other hand, if such request is considered and rejected on some reasons and findings, then it is for the next fact finding authority to go into the same to find out as to whether such reasonings and findings are justifiable or not. Therefore, at this stage, this court is not inclined to go into such question and give any finding on the same. The present writ petition is not maintainable as the petitioner has to exhaust the alternative remedy of filing an appeal before the CESTAT - petition dismissed - decided against petitioner. - Writ Petition No. 16172 of 2016 W. M. P. No. 13956 of 2016 - - - Dated:- 30-6-2017 - K. Ravichandrabaabu, J. For the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the petitioner for the reason that they are in the nature of statement of co-accused having no evidentiary value, more so, when they have been retracted by the respective makers. The petitioner sought to cross-examine those persons and however, the Adjudicating Authority rejected such request. The petitioner filed a detailed written statement of defence dated 28.12.2015 in the course of hearing of adjudication proceedings. Finally, the Adjudicating Authority passed the impugned order finding the petitioner guilty of the charge of abetment, thereby imposing penalty of ₹ 2 crores in terms of Section 112(b) of the Customs Act, 1962. 3. The respondent filed a counter affidavit wherein it is stated as follows: On 29.04.2014, the Officers of Directorate of Revenue Intelligence, Chennai Zonal Unit, searched the residential premises of one Thameem ansari and recovered 33.3499 kgs of crude gold bars valued at ₹ 9.91 crores. They also searched the residence of one Syed Rehman who is the close associate of Thameem Ansari. During the course of investigation, the statement of Thameem Ansari was recorded wherein he has stated that he sold the smuggled gold bars to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest for cross examination of Thameem Ansari was rejected by one line order. With regard to the seizure of 33.3499 kgs of gold, the petitioner is not called upon to answer. The imposition of penalty on the petitioner is referable only to the alleged earlier transaction, for which, no values is given in the impugned order. Even otherwise, the materials available before the respondent, namely, the statement of Thameem Ansari and Rehman, is only a retracted statement by those persons. Therefore, it requires corroboration. In the absence of any independent statement, those retracted statements cannot be looked into. In support of these contentions, the decision reported in 2015 (317) ELT 177 SC, 2006 (13) SCC 210 and 2014 (300) ELT 342(Madras) are relied on. The show cause notice was not clear as to on what relevant provisions of law under which it was issued to the petitioner. Therefore, it cannot be sustained. In this connection 1983 (12) ELT 322 (Madras) is relied on. Since the impugned order, imposing penalty on the petitioner goes beyond the show cause notice and without indicating the actual value of the gold alleged to have been given to the petitioner previously, the same is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2010) 8 SCC 110 (United Bank of India -vs- Satyawati Tondon and others) and (2005) 2 MLJ 246(DB) (M/s.Nivaram Pharma Private Limited, rep. by its Director Sardarmal M.Chordia, Madras vs- The Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench, Madras and others). 8. No doubt the learned senior counsel for the petitioner sought to contend that there is a jurisdictional error in this matter. According to him, the Adjudicating Authority has travelled beyond the show cause notice and imposed the penalty without giving the details of value of the gold allegedly given to the petitioner previously by those two persons, namely, Thameem Ansari and Syed Rehman. In nutshell, the crux of the contention of the learned senior counsel is that the quantum of ₹ 2 crores arrived at by the Adjudicating Authority, as penalty payable by the petitioner, is without any material details and particulars. His further contention is that the petitioner was not given an opportunity to cross examine those two persons, namely, Thameem Ansari and Syed Rehman and therefore, there is a violation of principles of natural justice. 9. Upon giving careful consideration to the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of smuggled gold bars nor the sale proceeds of the same do not seem to be readily available for seizure and confiscation as discussed supra. Obviously, no duty has been paid on the said quantity, resulting in huge loss to the exchequer. But for the intervention by DRI, they would have continued to smuggle and sell foreign origin gold bars unabated. In the light of the gravity of offence committed by S/Shri Haji Kaka, Thameem Ansari, Rehman and Al Ameen as discussed above, it is felt that this case is a fit case for imposition of exemplary penalty under Section 112 of Customs Act, 1962 commensurating with the seriousness of the offence committed by them, which could be equal to be the value of gold bars so far successfully smuggled and sold by them as mentioned above. 11. Perusal of the above said averments/ allegations made in the show cause notice would show that the approximate value of the 99 kgs of smuggled gold bars transacted in the past was given. It is further seen from paragraph Nos.6 and 7 of the show cause notice that those two persons, namely, Thameem Ansari and Rehman had given statement before the authorities that so far they have mainly sold smuggled gold bars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order would amply show that he has dealt with the approximate quantum of smuggled gold bars in the past and its value. He has also pointed out that the said quantum of smuggled gold bars in the past and the sale proceeds of the same were not readily available for seizure and confiscation. He further observed that as no duty has been paid on the said quantum, the same has resulted in huge loss of exchequer. He further pointed out that but for the intervention by DRI, the petitioner herein and others would have continued to sell foreign gold bars unabated. Therefore, he came to the conclusion that exemplary penalty under Section 112 of the Customs Act is warranted. Therefore, I do not think that the learned senior counsel for the petitioner is justified in contending that the Adjudicating Authority has gone beyond the scope of the show cause notice. Likewise, the Adjudicating Authority has considered in detail as to how the contention of the petitioner in respect of the so called retracted statements cannot be accepted by discussing the same in detail from paragraph No.49 onwards also by relying on certain case laws in support of his conclusion. Therefore, whether such findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is stage, this court is not inclined to go into such question and give any finding on the same. 14. No doubt, the learned senior counsel for the petitioner relied on certain case laws as referred to supra in support of his contention on the merits of the matter. As this Court is of the view that the petitioner has to exhaust the alternative statutory appellate remedy, I am of the view that those case laws can always be pressed into service before such appellate forum while contesting the matter in appeal on the factual aspects of the same as well. Accordingly, I find that the present writ petition is not maintainable as the petitioner has to exhaust the alternative remedy of filing an appeal before the CESTAT. Thus, the writ petition is disposed of with liberty to file an appeal before the CESTAT, Chennai, within a period of four weeks from the date of receipt of copy of this order. If any such Appeal is filed, the same shall be considered on its own merits and in accordance with law without reference to the period of limitation. It is open to the petitioner to raise all the points before the Appellate Forum. Any of the observations or findings made in this order will not stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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