TMI Blog2019 (1) TMI 1735X X X X Extracts X X X X X X X X Extracts X X X X ..... s necessarily requiring the examination and cross-examination of the witnesses, the appellant s request was accepted as per Tribunal s order and since notices sent to the address of the said Mangalam Textiles and Teratex were returned with remark Left , cross examination of the witnesses could not materialize. In nutshell, thus cross-examination of M/s. Mangalam Textiles and M/s. Teratex could not be completed in accordance with the direction of this Tribunal. The findings of the Learned Commissioner (Appeals) relying upon the opinion of M/s. Mangalam Textiles and M/s. Teratex without subjecting them to cross-examination, cannot carry any evidentiary value, hence ought to be discarded. Also, it is found that the Learned Commissioner him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to the appellant on 23-5-2006 proposing confiscation of the goods seized and released provisionally under Section 113(d), 113(h) and 113(i) of the Customs Act, 1962 read with Section 11 and 14 of the Foreign Trade (Regulation) Rules, 1993 for misdeclaration of quantity, value and excess DEPB claim of ₹ 6,66,947.59; imposition of penalty under Section 114 of the Customs Act, 1962. On adjudication, the Present Market Value (PMV) was redetermined as ₹ 69,97,095/-, the goods were directed to be confiscated and allowed to be redeemed on payment of fine of ₹ 5.00 lakhs, and imposed penalty of ₹ 50,000/- under Section 114 of the Customs Act, 1962. Aggrieved by the said order, the appellant filed an appeal before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the opinions of the said two witnesses in confirming the present market value for determination of FOB value and consequently, re-calculated the DEPB benefit. He has submitted that not allowing cross-examination of the witnesses, whose opinions have been relied upon in directing confiscation; rejection of transaction value etc., has resulted in violation of principles of natural justice. In support, he has referred to the judgment of the Hon ble Supreme Court in the case of Andaman Timber Industries v. Commissioner of Central Excise, Kolakata-II - 2015 (324) E.L.T. 641 (S.C.). 3.1 He has further submitted that even though the Learned Commissioner has, in the impugned order, observed that the entire export proceeds has been realize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Textiles, of Kalbadevi, Mumbai both of whom opined that the fabrics were made of 100% polyester yarn of very light GSM and such fabric was commonly available in the market for approximately ₹ 23/- to ₹ 25 per yard. The appellants had asked for copies of these reports in their reply dated 14-3-2007 top the show cause notice and also sought cross-examination of two persons who had furnished the above opinions. It is their submission that till date copies of the two reports have not been supplied to them. What has been supplied under cover of letter dated 8-6-2006 is copy of panchnama, copies of various statements, copies of invoice, shipping bills, and packing list. The Revenue is not in a position to rebut the plea of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Teratex were returned with remark Left , cross examination of the witnesses could not materialize. In nutshell, thus cross-examination of M/s. Mangalam Textiles and M/s. Teratex could not be completed in accordance with the direction of this Tribunal. However, the Learned Commissioner instead of deleting the said evidence, relied upon the same in para 25 of the impugned order. The findings of the Learned Commissioner (Appeals) relying upon the opinion of M/s. Mangalam Textiles and M/s. Teratex without subjecting them to cross-examination, in our opinion, cannot carry any evidentiary value, hence ought to be discarded. Also, we find that the Learned Commissioner himself observed that the entire FOB value declared by the appellant has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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