TMI Blog2023 (12) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... r se does not provide for any cross examination, as the provision deals with relevancy of statements in the facts and circumstances of the case. As to whether an opportunity of cross examination ought to be given in regard to the statements as recorded by the Customs Officer, would be required to be considered in the course of adjudication of the show cause notice. Considering the implications, the provisions of Section 138B would bring about, it is not found that in the facts and circumstances of the case, it can be argued by the petitioner as an absolute principle of law, that an opportunity of cross examination of three witnesses ought to have been granted to the petitioner. Sub-section (1) clearly provides for relevancy of statements as made and signed before the Gazetted Officer of the Customs only in relation to any prosecution for an offence under the Customs Act and not otherwise. Although sub-section (2) makes a provision that the provisions of sub-section (1) are applicable in relation to any proceeding under the Customs Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court, it cannot be countenanced that sub-section mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In our opinion, the petitioner is resorting to be selective to dodge the proceedings, on raising hyper technical issues, which even otherwise are without merit. There are no merit in this petition - petition dismissed. - G. S. KULKARNI JITENDRA JAIN, JJ. For the Petitioner : Ms. Kiran Doiphode i/b. V. M. Doiphode Co., For the Respondents : Mr. Karan Adik with Ms. Maya Majumdar. JUDGMENT (PER G. S. KULKARNI, J.): 1. This petition under Article 226 of the Constitution of India is filed praying for the only relief that the order-in-original dated 6 June 2017 passed by the Commissioner of Customs, Pune, be quashed and set aside. 2. At the outset, it may be observed that an objection was raised on behalf of the respondent that the petitioner has a remedy of filing an appeal against the order-in-original as provided for under Section 129A of the Customs Act (for short the Customs Act ) before the Customs, Excise and Service Tax Appellate Tribunal (for short CESTAT ). However, the petitioner would submit that the petitioner ought not to be relegated to such statutory remedy as the impugned order involves breach of the principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had taken up the show cause notice dated 29 March 2000 for adjudication. The petitioner has averred that a reply to the show cause notice was submitted by his Advocate s letter dated 15 February 2017. On perusal of the petitioner s Advocate s letter, it clearly appears that the petitioner has not at all addressed the principal allegations as made in the show cause notice, namely, that there was concealment of ball bearings in the declared consignment of Damar Batu by the petitioner when the investigation revealed that the cargo declared by the petitioner as Damar Batu, imported vide Bill of Entry No. 000479 dated 5 October 1999 on being examined at Container Freight Station Pimpri, Pune, in the presence of Mr. Deepak Bhargawa, CHA, proprietor of M/s. Avignon Shipping Agency and in the presence of two panchas, the investigation revealed that foreign origin ball bearings having estimated market value of Rs. 58,91,006/- were concealed in the consignment declared to be of Damar Batu which was valued merely at Rs. 57,074/-. The consignment was accordingly placed under seizure under the provisions of the Customs Act. The investigation further revealed that the address declared on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, after having substantial material to issue a show cause notice, a show cause notice dated 29 March 2000 was issued to the petitioner. As noted above, a reply dated 15 February 2017 was filed by the petitioner to the show cause notice and thereafter, an additional reply dated 9 March 2017 was filed by the petitioner, however, the petitioner did not deal with the merits of the show cause notice. Despite such clear factual position, what is insisted is that the petitioner be provided an opportunity to cross examine Mr. Shyamkant Laxman Kolpe, Godown keeper, Mr. Praveen V. Ladkat, who had taken the godown on lease and was involved in packaging of the ball bearings, as also supplying the ball bearings to Mr. Nitin Mehta, who was a dealer in ball bearings and the proprietor of M/s .Collective Trade Links, Mumbai, who was interested to purchase the consignment at discounted price. 9. On the above backdrop, the show cause notice was taken up for adjudication. The petitioner was given full opportunity in the adjudication of the show cause notice. The petitioner was represented by his counsel who had made detailed submissions in the adjudication of the show cause notice. After hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount has taken a chance to file this writ petition, despite an efficacious alternate remedy available to the petitioner. It is contended that as set out in detail in the show cause notice, the person hearing these notices addressed to Mr. Shyamkant Kolpe and Mr. Pravin Ladkat, were not served and returned by the postal department. Also in the facts and circumstances, considering the provisions of Section 9D and 138B of the Customs Act, the request for cross examination of the witnesses was disallowed by recording detailed reasons. It was submitted that there was sufficient material as also the statements of different persons recorded, were found substantial corroboration in the adjudication of the show cause notice. 13. The reply affidavit states that in the facts and circumstances of the case, the charges were not only confirmed merely on the sole basis of the statements, but also the corroborative evidence which have been weighed and elaborately discussed by the adjudicating authority including the panchanama which was proved and the other voluminous material of illegal import and smuggling of the ball bearings, and there was no violation of the principles of natural justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eer Shah (Real Name Javed Shaikh ) vs. The Union of India Anr. Writ Petition (l) No. 3220 of 2020 (OS), decision dt. 9.6.2022., the decision of Delhi High Court in Basudev Garg vs. Commissioner of Customs 2013(294) E.L.T. 353 (Del.). 15. On the other hand Mr. Adik, learned Counsel for the revenue while opposing the petition has reiterated the contentions as urged by the Revenue in the reply affidavit. Mr. Adik would submit that the petition ought not to be entertained on the ground that the petitioner has an equal efficacious alternate remedy of an appeal before the CESTAT under Section 129A of the Customs Act. He submits that it is only to avoid the mandatory pre-deposit of the amount, the present petition has been filed. It is his contention that the facts and circumstances of the case are such that the contention of the petitioner that the petitioner is not provided for an opportunity to cross-examine the said three witnesses, is totally untenable inasmuch as the impugned order is a detailed order relying on several materials and it is not passed solely on the basis of the statements made by three witnesses. He submits that the contention that the provisions under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a Court.] (emphasis supplied) 17. A plain reading of Section 138 B would show that this provision pertains to the relevancy of statements under certain circumstances which stipulates that a statement made and signed by a person before any Gazetted Custom Officers, may during the course of any inquiry or proceedings under the Customs Act, shall be relevant, for the purpose of proving, in any prosecution for an offence under the Customs Act, the truth of the facts which it contains eventualities as provided for in clauses (a) and (b) of sub-section (1). Sub-section (1)(a) stipulates the eventuality. When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence under the Customs Act and not otherwise. Although sub-section (2) makes a provision that the provisions of sub-section (1) are applicable in relation to any proceeding under the Customs Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court, it cannot be countenanced that sub-section makes a blanket provision for cross examination of such persons whose statement have been recorded before any Gazetted Officer of the Customs during the course of any inquiry or proceedings. In fact clause (b) of sub-section (1) makes a contrary indication, when it refers to the statement of the persons who are dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense, which are eventualities wherein such persons can never be available for cross examination. Sub-section (1) also does not in any manner take away the discretion of the Customs Officer to accord appropriate weightage to the material and / or evidence before him in adjudicating the show cause notice. We are thus not inclined to accept the contention as urged on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the petitioner that merely because the cross-examination was not given, the order-in-original is required to be quashed more so, when the respondents had issued notices to the persons whose statements were relied upon, however, these persons either made written submissions or choose not to appear. 22. We have perused the grounds raised in the present petition and the only ground on which the order-in-original is sought to be quashed is non-granting of opportunity to cross-examine three persons whose statements are relied upon in the order-in-original and the show cause notice. There is no submission on the merits of the case even prima facie which would show that the petitioner is merely taking recourse to a technical plea, to avoid the liability imposed by the order-in-original. In the facts of the present case, in our extraordinary jurisdiction we cannot entertain such plea. 23. On a perusal of the impugned order-in-original which runs into 118 pages and on a holistic reading of the order, it cannot be said that the order is passed only on the statements of three witnesses of which cross-examination has not been granted, but there were various other direct evidences a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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