TMI Blog2009 (7) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... ved from paying any amount. We take note of the maxim that 'act of Court shall prejudice none'. By the Act of this Court, the Revenue also cannot be prejudiced. - 13653 of 2002(A) - - - Dated:- 3-7-2009 - K.BALAKRISHNAN NAIR and C.T.RAVIKUMAR, JJ. [Judgment per Balakrishnan Nair, J.] - The petitioners have approached this Court challenging Ext.P9 order of the Commissioner of Customs dated 28.3.2002, ordering that they are liable to pay an amount of Rs.32,22,220/- (Rupees thirty three lakhs twenty two thousand two hundred and twenty only) towards differential duty payable under the Customs Tariff Act and Central Excise Tariff Act. 2. The brief facts of the case are the following: The 1 st petitioner Company imported newsprint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , mainly, on the ground of violation of principles of natural justice, the Original Petition was filed. Under the provisions of the Act, the petitioners had a right of appeal to the Commissioner of appeals, then a further appeal to the Appellate Tribunal and thereafter, a further appeal to this Court on substantial question of law. The bypassing of those statutory remedies was justified by the petitioners taking the plea that the order of assessment was passed in violation of principles of natural justice, in as much as they were not given a chance to cross-examine the Officer, who took the samples, and the Chemist, who did the analysis. This Court entertained this Original Petition and granted stay of Ext.P9 on 30.5.2002 for one month. Lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Swadeshi Polytex Ltd. v. Collector of Central Excise, Meerut [2000(122)E.L.T.641(SC).In K.T.Shaduli's case, the Apex Court held as follows: "5. The second part of the proviso lays down that where a return has been submitted, the assessee should be given a reasonable opportunity to prove the correctness or completeness of suchreturn. This requirement obviously applies at the first stage of the enquiry before the Sales Tax Officer comes to the conclusion that the return submitted by the assessee is incorrect or incomplete so as to warrant the making of a best judgment assessment. The question is what is the content of this provision which imposes an obligation on the Sales Tax Officer to give and confers a corresponding right on the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee could not do, unless he was given an opportunity of cross-examining Hazi Usmankutty and other wholesale dealers with reference to their accounts. Since the evidentiary material produced from or produced by Hazi Usmankutty and other wholesale dealers was sought to be relied upon for showing that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to an opportunity to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examination. It can hardly be disputed that cross-examination is one of the most efficacious methods of establishing the truth and exposing falsehood. Here, it was not disputed on behalf of the Revenue that the assessee in both cases applied to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged." 6. Learned senior counsel further submitted that action taken in violation of principles of natural justice will make it arbitrary and therefore, violative of the fundamental right of the petitioners under Article 14 of the Constitution of India. 7. The learned counsel for the respondent brought to our notice the hierarchy of the authorities available under the statute for the redressal of the grievance of the writ petitioners. The learned counsel pointed out that the Commissioner of appeals has power to hold further enquiry and if found necessary, to take further evidence also. Therefore, the main grievance canvassed by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertain the correct wood fibre content. The petitioners also disputed, the method employed for arriving at the wood fibre content. For the above reasons, they wanted to cross-examine the Customs Officer, who took samples and the Chemist, who did the analysis. We notice that the analysis report is a document relied on against the petitioners. Therefore, if they request to make available the author of that report for their cross-examination, the assessing officer was bound to do that. Regarding the samplings, if the records are produced, it could be found out whether for sampling the proper procedure has been followed or not. It may not be necessary to examine the Officer, who took the samples. But, the chemical analysis report, which alone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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