TMI Blog2022 (4) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... and further that the evidence of positive commencement should be taken in his presence was that he be given an opportunity to cross examination, the witnesses examination of the other party charges the non providing of the said opportunity was held to be violation of principles of natural justice. Coming to the facts of the present case, the allegations of Show Cause Notice are based upon the physical examination of the goods that too in the presence of the appellant and the appellant s proprietor. He had declared the said goods in the Bill of Entry as unbranded TV panels. There is no denial of the appellant that said physical examination revealed that the goods instead of being TV parts were LED TVs of Samsung brand though in SKD form. There is no denial that the parts were imported in different consignments. In his statement dated 15.01.2018 the appellants proprietor himself has admitted that there was no written agreement or contract existed for the export nor any written purchase order placed nor even any written quotation /proforma invoice was supplied to him with respect to the goods in question - the definite match was observed by the investigating team in the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued proposing rejection of classification of the goods in the Bills of Entry as parts and panel of LED TV and proposing the goods to be classified as complete set of LED TV. The declared value was proposed to be re-determined with a demand of differential customs duty and imposition of penalty. While adjudicating the said Show Cause Notice the appellant requested for cross examination of 9 witnesses and officers which was rejected vide the order under challenge holding that there is sufficient admission of the appellant-applicant about the allegations levelled in the Show Cause Notice. Denial of cross examination in such circumstances is alleged by the appellant to be violative of principles of natural justice. 3. The appellant is aggrieved by the denial of cross examination in the impugned appeal and prays for setting aside of said order and a permission to cross examination of panch witnesses of departmental officers based upon whose statement that the impugned Show Cause Notice has been issued. 4. We have heard Shri Akhil Krishan Maggu, learned Counsel for the Appellant and Shri Rakesh Kumar, learned Authorised Representative for the Department. 5. It is submitted on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Bill of Entry declaring the goods as unbranded LED TV panels whereas on examination, the goods were found as Curved LED panel of Samsung Brand. The value thereof was also found to be wrongly declared. Hence present is the case of clear mis-declaration and under valuation. Not only this the appellant has been found to be wrongly availing the benefit of exemption notification No. 50/2017-Cus. It is mentioned that the goods were not at all parts of LED panels as claimed by the appellant but these were ordered to be supplied as either TVs in SKD form or as complete TV sets which were deliberately unassembled into panels and parts so as to fit into different containers to take inadmissible benefit of the notification. The documents recovered during investigation and the statement recorded even of the proprietor of the appellant sufficiently proves the allegations of the Show Cause Notice. It is in the reply dated 16.6.2021 to Show Cause Notice that the cross examination of 5 Departmental Officer and 4 independent witnesses was made by the appellant which has been rightly been rejected by the Department. Thus Appeal is accordingly prayed to be dismissed. Learned Departmental Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the Appellate Authority as to how he has been prejudiced by the refusal to grant an opportunity to cross examine any official. 10. Earlier also while deciding the case titled as K L Tripathi vs State Bank of India Ors. reported as [AIR 894 SC 273] the Hon ble Apex Court held that in order to sustain the complaint of violation of principles of natural justice on the ground of absence of opportunity of cross examination, it must be established that some prejudiced has been caused to the appellant by the procedure followed. It was held that the party who does not want to controvert the veracity of evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross-examination was provided to him. Similarly was the view of Hon ble Apex Court in the case titled as Union of India vs P K R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reply. The appellant was still declaring his goods as unbranded TV parts with no specific denial that the physical examination of his consignments in his presence revealed that all goods in his consignments were of Samsung brand. That the appellant has taken the plea that there is no Chartered Engineer s report to support the allegation of the Department, but there has been the examination report of Customs Officer dated 19.11.2017 (check) and re-examination reported dated 11.5.2018(check) categorically stating that the goods were branded LED panels and parts in TV glass casing but they found them without remote control without power cable without the mother board and without the sockets. There is no denial that the parts were simultaneous imported by the appellant but in different consignment. 13. Thus we are of the opinion that nothing cogent has been brought in reply to the Show Cause Notice to prima facie falsify the allegation of show cause notice or even to make the case of any prejudice or to establish that some prejudice has been caused to the appellant by procedure followed. There is no case of the appellant that his statement dated 15.01.2018 was his involuntary stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erference with the said order in these proceedings under Article 226 of the Constitution of India. The writ petition, in its challenge against Ext.P5 order, therefore fails, and is accordingly dismissed. 15. In the decision of this Tribunal in the case of M/s. A V Agro Products Ltd. Vs. Commissioner of Customs, Central Excise and CGST New Delhi reported as [2020 (373) ELT 258 (Tri-Delhi) has held that- 5. As far as applicability of Section 9D of Excise Act/138B of Customs Act as rightly observed by the adjudicating authority that the statement recorded were more in the nature of confession. The same cannot be the scope applicability of Section 9D. I draw support from Silicone concept (supra) as is emphasised by the Department. 16. Similarly in another decision this Tribunal in the case of Silicon Concept International (P) Ltd. Vs Pr Commissioner of Customs, ICD TKD reported as [2019 (368) ELT 710 (Tri-Del)] has held that 13 . From the above discussion it becomes clear that the confessional statements are out of the ambit of Section 9D as relied upon by the appellant and as has been considered in the various case laws relied upon by the appellant. The co-noticee, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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