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2018 (6) TMI 1026

justice? - Held that:- The petitioner was denied the right of cross-examination by the adjudicating authority without cogent ground. Consequently, the impugned order suffers from the vice of breach of principles of natural justice. - Whether provisions of Section 112 of the Customs Act, 1962 allow the adjudicating authority to impose a penalty of an amount of his choice? - Held that:- In view of the first issue being answered in the negative, the impugned order is required to be set aside. In such circumstances, the answer to the second issue becomes academic. Moreover, the second issue is pending for consideration before the Division Bench in the appeal carried from Gopal Saha [2016 (5) TMI 83 - CALCUTTA HIGH COURT] - this issue is th .....

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urpose of crossexamination of the accused nos. 1 and 2 by the petitioner. In any event, the accused nos. 1 and 2 did not appear on May 1, 2017. Therefore, the petitioner was denied an opportunity of cross-examination of the accused nos. 1 and 2. He has submitted that, the Advocate for the petitioner had requested the adjudicating authority for further date for cross-examination, subsequent to the hearing dated May 1, 2017. He has referred to the correspondence exchanged in that behalf. He has submitted that, by an application, received by the adjudicating authority on March 29, 2017, the petitioner had asked for an opportunity to crossexamine the accused nos. 1 and 2. The petitioner did not appear on May 1, 2017. The next date for hearing w .....

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dated May 14, 2018 passed in W.P. No. 85 of 2018 (Sadguru Forwarders Pvt. Ltd. & Anr. v. The Commissioner of Customs (Port), Kolkata. Learned Advocate appearing for the respondents has submitted that, the adjudicating authority did not act in breach of the principles of natural justice. The pleas taken by the petitioner are hyper technical in nature. The petitioner was allowed an opportunity to cross-examine the witnesses of the prosecution on May 1, 2017, when the petitioner was not present at the hearing, to avail of such opportunity. The next date of hearing was October 23, 2017. The petitioner, therefore, cannot claim that no opportunity of personal hearing was given to the petitioner or that, the right of cross-examination was den .....

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ority to impose a penalty of an amount of his choice? The Commissioner of Customs (Airport and Administration) was discharging powers under the provisions of the Customs Act, 1962 while adjudicating upon a show-cause notice issued to the petitioner. The adjudicating authority is required to adhere to the principles of natural justice in the adjudicating process. Audi alteram partem is one of the principles of natural justice. The petitioner is the accused no. 3 in the proceedings before the adjudicating authority. The prosecution seeks to rely upon witnesses of two natural persons against the petitioner in such proceedings. The petitioner had applied for cross-examination of such witnesses. In accordance with the principles of natural justi .....

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Subsequent to May 1, 2017, the petitioner through its Advocate s letter dated July 10, 2017 requested for cross-examination of the witnesses of the prosecution. The next date of hearing was on October 23, 2017 when admittedly the petitioner was not allowed the right of cross-examination. It appears from the records made available that, the hearing remained inconclusive on May 1, 2017. A request was made by the petitioner by its Advocate s letter dated July 10, 2017 for a right of cross-examination. The next date of hearing was on October 23, 2017. The impugned order does not record that, the right of cross-examination was closed on May 1, 2017. Assuming that the adjudicating authority had closed the right of cross-examination on May 1, 201 .....

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