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Judgment
V. Dhanapalan, J.—Petitioners are before this Court praying for issuance of a writ of certiorari calling for the records of the respondent in
and connected with Order in Original No: 26/2012 dated 18.01.2012 in F. No: CAU/DRI/12/2011-Air and quash the same as it is violative of
principles of natural justice and reasonableness in the conduct of the adjudication proceedings. The facts, in nutshell, leading to the filing of the
present writ petition are as follows:
(i) 1st petitioner is a partnership firm established in the year 1997 and is an 100% Exported Oriented Unit functioning from the Madras Export
Processing Zone, Kadaperi, Tambaram, Chennai. The 2nd petitioner is the Managing Partner of the 1st petitioner firm. The petitioner firm imports,
duty free raw material i.e. aromatic chemicals, from France, Dubai, Singapore and Japan, processes and manufactures perfumes, attars, bakhoor
powder and sandalwood oil and exports the same. The Office of the Development Commissioner, MEPZ, Chennai, had issued three licences for
manufacture of perfumes and cosmetics besides agarbatis and bakhoor with an annual capacity of 400 M.Ts. Under licence dated 27.03.2003, the
1st petitioner firm imported Aromatic Chemicals for manufacture of perfume cosmetics, agarbattis and bakhoor and under licence dated
26.03.2003, the 1st petitioner firm imports sandalwood logs and roots from M/s. ADEP Impex, Tanzania, for manufacture of Sandalwood oil. It is
stated that though under the licence dated 23.03.2004, petitioner firm was permitted to trade in Sandalwood, as it could not be done within the
period allotted and therefore, it stood cancelled. The items imported like Aromatic Chemicals Herbs, Sandalwood, etc. are solely and exclusively
used in the manufacture of perfumery sprays, bakhoor powder, bakhoor oil, Indian attars and sandalwood oil, which are duly exported. It is stated
by the petitioner that every receipt of imported material into the manufacturing facility/factory situated at MEPZ is duly accounted for in the
statutory records and accounts maintained at the Factory and subject to check and audit by the jurisdictional officers of Customs, Central Excise
and the Development Commissioner and that every export of manufactured items are duly documented in the statutory record, register and books
of accounts, which are also checked and cross verified in a strict manner by the aforesaid authorities. In fact, in connection with any export
shipment to be made, it is imperative that the documentation and movement of the goods in containers from the factory of the 1st petitioner to the
concerned port is monitored and checked at every stage by officers of Customs. The procedure adopted at MEPZ Gate regarding inward entry
and outward movement of vehicles carrying goods is the responsibility of the Customs Office situated at the gate. It is stated that the MEPZ Gate is
manned by three Preventive Officers in three shifts round the clock under the direct supervision of Superintendent of Customs. The overall control
and supervision of the office is at the hands of a Deputy Commissioner of Customs. Besides the Preventive Officers, the Customs formation also
has examiners, appraisers posted, who carry out the function of examination and verification of every goods, which enter or exits from the MEPZ.
Two registers are maintained at the gate wherein details of imports and exports by the companies situated at MEPZ would be registered
respectively. The Registers will have details of Shipping Bills/Bill of Entry and other relevant details pertaining to the goods and transportation
thereof. With regard to entry of raw materials for export companies or the goods sent for job work by Export Companies, ""passed-in"" and
passed-out"" stamp will be affixed on the documents accompanying the goods. It is also stated by the petitioners that the goods which are
transported for export are affixed with a one time seal of the Officer of Customs, who is present at the time of stuffing of the goods in the
Factory/Unit causing export. Such seal certifies the fact that the consignment stuffed and exported from the factory premises at MEPZ is as per the
statutory records including Shipping Bill, Invoice, etc. In the case on hand, the petitioners filed Shipping Bill Nos.: 8974 and 9099 dated
10.12.2004 and 15.12.2004 respectively, for shipment of Indian attars (bakhoor incense) weighing 130,000 kgs. Each for export of the same to
M/s. Sherzam Trading Enterprises, Singapore. The goods were stuffed into the container and sealed with one time seal affixed by the Appraiser of
Customs, attached to the Office of the Deputy Commissioner of Customs, MEPZ, Tambaram, Chennai. Similarly, in respect of Shipping Bill No:
8973 dated 10.12.2004, the connected export documents have been duly filed with the said office, which has permitted for export under let-
export order after affixation of the one time seal on the containers. While so, on the basis of information, the Directorate of Revenue Intelligence,
Zonal Unit, Chennai, said to have intercepted the containers outside the MEPZ area in respect of Shipping Bill Nos.: 8974 and 9099 and
recovered there from 4.314 M.Ts. of Sandalwood, besides 39.580 M.Ts. of Red Sanders from the said consignments. It is the further case of the
petitioners that the 2nd petitioner was not present at the time of stuffing of the export goods in the containers at the factory site and that the
concerned Appraiser checks each and every box and package before affixing the seal on the lock of the container and once the container is sealed
it is the property of the Government.
Thus, according to the petitioners, the contention that the contraband was concealed in the export consignment and taken out in the guise of Indian
Attars is unsustainable in law.
(ii) Pursuant to the investigation, seizures were effected and statements were recorded from various persons including the 2nd petitioner.
Subsequently, the 2nd petitioner was arrested and detained under the provisions of COFEPOSA Act, 1974. The detention order was later
quashed by this Hon''ble Court. That being the position, on completion of investigation, the Office of the Directorate of Revenue Intelligence, Zonal
Unit, Chennai, issued two show cause notices in F. No: VIII/48/83/2004-D.R.I. and another in F. No: VIII/48/83 A/2004-D.R.I. In this writ
petition, the proceedings and procedure adopted by the respondent in issuing these two show causes notices is called in question.
The allegations and proposals in the show cause notices were contested by the petitioners under Interim reply dated 03.08.2005. Besides
contesting the matter on merits, petitioners sought for cross examination of those persons whose statements are relied on in the show cause notices.
However, on 11.11.2011, the adjudicating authority rejected the request of the petitioners for cross examination of the aforesaid persons on
untenable grounds and directed the petitioners to file their statement of defence. Aggrieved by the said order, petitioners approached this Court
earlier in W.P. No: 27439 of 2011. After contest, that writ petition came to be disposed of on 08.12.2011, directing the respondents to dispose
of petitioner''s representation dated 14.11.2011 within a period of three weeks from the date of receipt of a copy of the order.
(iii) Pursuant to the aforesaid order, respondent took up the matter and vide order dated 13.01.2012, rejected petitioner''s demand for cross
examination of the persons named in the show cause notice. Immediately thereafter, the show cause notice was taken up for adjudication and by
the impugned Order-in-Original No: 26 of 2012 dated 18.01.2012, the respondent, while confiscating the goods detailed therein, also levied
penalty on both the petitioners and on one Mr. R. Selvaraja, the sole proprietor of M/s. Chennai Essential Oils and Aromatics, Chennai-98.
Challenging the said order, petitioners are before this Court in this writ petition.
At the first instance though a very cryptic counter affidavit was filed by the Assistant Commissioner of Customs, Air Commissionerate,
Meenambakkam, Chennai-600 027, later an additional Counter affidavit came to be filed by the Deputy Commissioner of Customs (Legal), Air
Cargo Complex, Meenambakkam, Chennai-600 027, furnishing full details of the case. It is submitted in the counter that in this case smuggling was
unearthed by the Directorate of Revenue Intelligence who issued the show cause notice to the petitioner and others. The Show Cause Notice
dated 13.06.2005 was received from the Directorate of Revenue Intelligence by the Commissionerate and after completing formalities, it was
taken up for adjudication in the normal run. On 05.09.2011, a personal hearing was offered to all the four notices as well as for the counsel for the
petitioners. The counter for the petitioner, vide letter dated 2.9.2011, sought for an adjournment of the case and Mr. Palanikumar, counsel for co-
noticee Mr. Selvaraj, vide his letter dated 3.9.2011, requested for an adjournment and it was granted for both of them. Further three more
personal hearings were given on 26.09.2011, 18.10.2011 and on 11.11.2011. Counsel for Mr. Selvaraj, co-noticee, submitted a letter on
20.09.2011 with judgments and requested for leniency and mercy while passing the order. Another adjournment sought for was also granted. The
hearing notice sent to yet another co-noticee M/s. Chennai Essential Oils and Aromatics was returned undelivered and then the notice was placed
on the notice board.
It is further stated in the counter that the second personal hearing was fixed on 18.10.2011 by due despatch of hearing notice to all concerned.
But none appeared. For the third personal hearing fixed on 11.11.2011, counsel for the present petitioners appeared. Before proceeding further,
W.P. No: 27439 of 2011 was filed before this Court. This Court, by its order dated 08.12.2011, disposed of the said writ petition with a direction
to dispose of petitioner''s representation dated 14.11.2011 within a period of three weeks. By a detailed order dated 13.01.2012, the respondent
disposed of the petitioner''s representation, denying the right to cross examine the said persons. There is no challenge to this order dated
13.01.2012 and, hence, it had attained finality. On 18.01.2012, the respondent, passed the impugned order in Original No: 26 of 2012
confiscating the prohibited goods and imposing penalty of Rs. 30 lakhs on the 1st petitioner; Rs. 20 lakhs penalty on the 2nd petitioner and Rs. 20
lakhs on Mr. Selvaraj, proprietor of the supplier of Red Sanders. The impugned order was duly communicated to all concerned and the one sent
to M/s. Chennai Essential Oils and Aromatics has been returned undelivered and hence, it was placed on notice board. It is further stated in the
counter that, in obedience to the order passed by this Court, the respondent passed the order and disposed of the representation of the petitioner.
In the personal hearing offered, the learned counsel for one of the notices only prayed for leniency while others only took adjournments. Hence, the
writ petition is only an abuse of process of law and it has been filed with a view to putting spokes on the rails of legal course. The only remedy now
available to the petitioner is to prefer an appeal to the CESTAT and in order to avoid payment of pre-deposit, the petitioner has filed this writ
petition. There is absolutely no merit in the writ petition and the petitioner does not deserve any indulgence. The role played by the said four
persons do not in any way relate to the act of smuggling perpetrated by the petitioner. Mr. Raghu is a driver of the trailer, who says that he brought
the vehicle inside MEPZ, left it there and then, he was asked to wait outside and that after putting the customs seal, he was asked to take the
vehicle outside the MEPZ. Mr. Mohammed Nizam is the manager of the petitioner and his own uncle is the partner of the petitioner-firm. He says
that Mr. Selvaraj used to send his persons Mr. Dhanapal and Mr. Yuvaraj, who would stuff the red sanders at the factory of the petitioner.
By that time, all employees of the petitioner would not know as they used to go outside the factory; that as per the latest guidelines, regular
examination by the customs is not required for the import and export cargo for the units situated at MEPZ. Another named witness, Mr. Dhanapal
and Mr. Yuvaraj are the employees of the supplier. They gave a voluntary statement u/s 108 of the Customs Act admitting that they would stuff
red-sanders and place them at the back side of the cargo and in the front side declared goods of agarbathi, etc. would be loaded. Beyond that
they did not depose. Even otherwise, it is submitted that the cross examination is redundant. Detailing all these aspects, the adjudicating authority
passed a reasoned order and rejected their request for cross examination. That rejection order had attained finality. Therefore, the plea that the
impugned order suffers from the vice of violation of principles of natural justice is not correct and legally maintainable.
According to the respondent, the essence of the writ petition is that the statements of the witness only go to prove the innocence of the
petitioners and hence, they cannot be relied upon by the respondents. It is further stated by them, that since the 2nd petitioner retracted his
statement, it has no value in the eye of law. Supreme Court has held that though retracted, such statement is admissible and can be relied upon.
Thirdly, the 2nd petitioner was not present while stuffing the goods for exports. According to the respondent, all these aspects are purely question
of facts and it is settled law that question of fact cannot be decided under Article 226 of the Constitution of India and hence, on this ground also
this writ petition is liable to be dismissed.
It is further stated in the counter affidavit that, the short facts in the adjudication proceedings are that under the guise of exporting agarbathies
and incense sticks, the petitioners have smuggled ""Sandalwood"" and ""Red Sanders"" valued about Rs. 64.71 lakhs and Rs. 78 lakhs respectively. It
is submitted that in this case, one container was seized at Chennai Harbour while the other consignment exported to Singapore declaring it as
Agarbathies was recalled based on specific information. Further, the seizure of red sanders in three containers was made in the presence of
independent witnesses and these factual aspects are not denied by the petitioners. It was also pointed out in the counter that, taking advantage of
the latest guidelines by which regular examination by the customs is not required for the import/export cargo for the units located in MEPZ, the
petitioners have indulged in such misadventure. The petitioners have wilfully smuggled prohibited goods by abusing the total confidence reposed in
them as a unit of MEPZ. The petitioners have to go before the Tribunal by filing an appeal and only with a view to avoid the payment of fine and
penalties that the petitioners are invoking the jurisdiction of this Court as a back-gate method and, therefore, the respondent prayed for dismissal of
the writ petition.
On the above background and pleadings, I have heard the learned counsel on either side and perused the records.
The main contention, in fact the only contention, raised by the learned counsel for the petitioners is that the respondents ought to have given the
petitioners an opportunity to cross examine the four persons named in the show cause notice and that denial of such an opportunity would amount
to violation of the principles of natural justice and on this sole ground, the impugned order is liable to be quashed. In support of his contentions, he
relied on the following decisions:
I G.T.C. Industries Ltd. Vs. Union of India,
The order appears a travesty of the principles of natural justice. It may be that for good ground the 3rd respondent might have found reason to
deny the petitioners the cross-examination of all or some of the 30 witnesses. But it did not and could not follow that the petitioners were to be
denied the right to lead oral and documentary evidence in support of their case and a personal hearing in that behalf. There can be no question but
that the impugned order must be set aside for breach of the principles of natural justice.
II. Lakshman Exports Limited Vs. Collector of Central Excise,
There was a difference of opinion between two Members of the Tribunal and the matter was referred to the President. The difference of opinion
arose because of the findings of the Vice President of the Tribunal that the principles of natural justice had not been observed and that the assessee
had suffered thereby. The President, however, did not agree and he held that there had been no request by the assessee to cross-examine the
representatives of the two concerns to show that the goods in question had been accounted for in their books of account and appropriate duty had
been paid. He also observed that he failed to understand the logic behind the request for cross-examination. We find that, in the reply to the show
cause notice, the assessee had specifically asked to be allowed to cross-examine the representatives of these two concerns to establish that the
goods in question had been accounted for in their books of account and the appropriate amount of Central Excise duty had been paid. The logic of
such request is clear from what is stated therein.
It is now not contested that the matter should go back to the assessing authority, who shall hear the matter de novo after ensuring that lacunae
pointed out in the order of the Vice President are met.
II Shalimar Rubber Industries and Others Vs. Collector of Central Excise, Cochin,
Shri T.L.V. Iyer, learned Senior Advocate appearing for the Department contended that there is sufficient material on record apart from the
evidence of Shri Sunny P. Kunnath which implicates the appellants in regard to the charges levelled against them, that apart he contended merely
because said Shri Sunny P. Kunnath has not been subjected to cross-examination. There is no reason why his evidence should be rejected if it is
otherwise acceptable and supported by other evidence.
Having heard the learned Counsel for the parties and perused the record we notice that the Collector in the adjudication proceedings has relied
very strongly on the evidence produced by the Department to show that the appellant firm had in fact purchased carbon black from M/s. Universal
Agencies as per the 82 invoices recovered by the Investigating Agency. He also relied upon the so-called statement made by Shri Sunny P.
Kunnath to the Investigating Officer that out of the 82 invoices 62 invoices which even though did not show the name of Shalimar Rubber
Industries, the appellants herein under the said fictitious invoices did purchase huge quantity of carbon black from M/s. Universal Agencies. As
noticed above, this witness was not examined by the Collector in the Proceedings. Consequently, he could not be subjected to a cross-
examination. Question thus arises, can the evidence of this witness be accepted as gospel truth to condemn the appellants herein ? It is to be seen
from the records that the appellants herein had produced a letter dated 22nd June, 1987 written by M/s. Universal Agencies of which above
mentioned Shri Sunny P. Kunnath was a partner wherein it was specifically stated that the appellant Shalimar Rubber Industries had not purchased
carbon black recovered by the 62 of the 82 invoices. The Collector in the course of his order rejected this letter preferring to rely on the alleged
oral statement made by said Shri Kunnath to the Inspector. While discussing this point the Collector observed ""moreover"", this letter was dated
22nd June, 1987 and addressed to M/s. Shalimar Rubber Industries, Perumbavoor, almost two months after the recovery of the invoices on
13.04.1984. This confirmation, I have no hesitation to state, is tailormade to the request of M/s. Shalimar Rubber Industries."" We find it extremely
difficult to accept this explanation of the Collector to reject the letter written by M/s. Universal Agencies. If the Collector can accept a statement
allegedly made by a partner of the Universal Agencies which is not confirmed by his oral evidence in the inquiry and not subjected to cross-
examination, we fail to understand how he could reject the letter signed by the very same person wherein he has given a diametrically opposed
statement. In our opinion the Collector on this point has used a different yardstick in assessing the evidence of Shri Sunny P. Kunnath. In this
background though the Collector did not have the benefit of the finding of the order of the Magistrate made in the criminal proceedings, we notice
it from the copy of the order produced before us that this Shri Sunny P. Kunnath was examined as PW 4 and has stated in his statement under
oath that Shalimar Rubber Industries, the appellants herein never purchased carbon black from him in fictitious name. He also has denied that he
ever made any statement to the Inspector (Preventive) Unit in regard to the 62 invoices seized from his firm as to the sale of carbon black. He has
also stated that these invoices along with other invoices were taken up by the said Inspector most of which were in the name of other parties and
not Shalimar Rubber. He has admitted before the Magistrate that he has issued the letter dated 22nd June, 1987. In that background it becomes
extremely difficult to place reliance on the so-called statement made by Shri Sunny P. Kunnath to the Inspector which according to the evidence of
the Inspector himself made before the Magistrate was not recorded. On the basis of such evidence, in out opinion, it is not possible to come to the
conclusion that there was such a clandestine purchase of carbon black from M/s. Universal Agencies.
IV Kellogg India Private Limited. and Madhukar Patil Vs. Union of India (UOI), Asst. Commission, Central Excise and Customs and
Commissioner of Central Excise,
The opportunity to cross-examine involves not only notice of the adverse material but also a sufficient interval of time to prepare for cross-
examination. The notice of the adverse material and opportunity of cross-examination is necessary because wherever the opponent has declined to
avail himself of the offered opportunity, it must be supposed to have been because he believed that testimony could not or need not be disputed at
all or be shaken by cross-examination. In this view of the matter, right to cross-examine or to have opportunity to effectively exercise that right is
an essential part of principles of natural justice. [See Lakshman Exports Limited Vs. Collector of Central Excise,
Thus affected person must be given fair opportunity not only to answer the case against him but to adduce positive evidence in support of his
own case together with right to contradict all adverse allegations, if necessary, by permitting him to cross-examine the witnesses of the opponent.
V. Automotive Tyre Manufacturers Association Vs. The Designated Authority and Others,
It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of
natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being
heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which
obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of
whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice
can neither be put in a strait-jacket nor is it a general rule of universal application. Undoubtedly, there can be exceptions to the said doctrine. As
stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic
scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final
effect of the exercise of that power. It is only upon a consideration of these matters that the question of application of the said principle can be
properly determined. [See: Union of India (UOI) Vs. Col. J.N. Sinha and Another,
In light of the afore noted legal position and the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to
while conducting investigations, we are convinced that duty to follow the principles of natural justice is implicit in the exercise of power conferred
on him under the said Rules. In so far as the instant case is concerned, though it was sought to be pleaded on behalf of the respondents that the
incumbent DA had issued a common notice to the Advocates for ATMA and Ningbo Nylon, for oral hearing on 9th March, 2005, however, there
is no document on record indicating that pursuant to ATMA''s letter dated 24th January 2005, notice for oral hearing was issued to them by the
incumbent DA. Moreover, the alleged opportunity of oral hearing on 9th March, 2005, being in relation to the price undertaking offer by Ningbo
Nylon, cannot be likened to a public hearing contemplated under Rule 6(6) of the 1995 Rules. The procedure prescribed in the 1995 Rules
imposes a duty on the DA to afford to all the parties, who have filed objections and adduced evidence, a personal hearing before taking a final
decision in the matter. Even written arguments are no substitute for an oral hearing. A personal hearing enables the authority concerned to watch
the demeanour of the witnesses etc. and also clear up his doubts during the course of the arguments. Moreover, it was also observed in Gullapalli
(supra), if one person hears and other decides, then personal hearing becomes an empty formality. In the present case, admittedly, the entire
material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant
information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no
occasion to hear the appellants herein. In our opinion, the final order passed by the new DA offends the basic principle of natural justice. Thus, the
impugned notification having been issued on the basis of the final findings of the DA, who failed to follow the principles of natural justice, cannot be
sustained. It is quashed accordingly.
Refuting the above submissions, the learned Senior Central Government Standing counsel appearing for the respondents placed reliance on the
following decisions and submitted that wherever the opportunity of cross examination is an empty formality, the denial of such an opportunity
cannot be held to be fatal to the case of the respondents:
Kanungo and Company Vs. Collector of Customs and Others,
We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In
the show cause notice issued on August 21, 1961, all the materials on which the Customs Authorities have relied was set out and it was then for
the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have
been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not
require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to
be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third
contention of the appellant.
1995 (80) ELT 118
The appellant, it is true, had asked for cross-examination of Shri Balinder Singh Sachhar. The Additional Collector has recorded in her Order at
page-9 that the appellant had been informed that since Shri Sachhar was himself a noticee, it would not be proper to summon him to give evidence.
The reason for this although not stated in the Additional Collector''s Order is evident, that i would not be proper to put Shri Sachhar in a position
where he might have to incriminate himself by giving evidence. This is clear when the Additional Collector goes on to say that Shri K.K. Sharma
was informed that if he wished Shri Balinder Singh Sachhar to make a statement, he could bring him along in the hearing. It is clear from the
Additional Collector''s order that at the next hearing Shri Balinder Singh Sachhar did not appear. Since Shri Sachhar was a co-noticee, the
Additional Collector''s action in not summoning him is correct in law; she has further made it clear that should Shri Balinder Singh Sachhar wish to
be cross-examined by the appellant, he was at liberty to appear for that purpose. The appellant does not dispute any of these facts. In these
circumstances, it cannot be said that the appellant was not given an opportunity to question Shri Balinder Singh Sachhar recording his statement.
There has, therefore, been no failure of natural justice on this account.
Union of India and another Vs. M/s. Jesus Sales Corporation,
The High Court has primarily considered the question as to whether denying an opportunity to the appellant to be heard before his prayer to
dispense with the deposit of the penalty is rejected, violates and contravenes the principles of natural justice. In that connection, several judgments
of this Court have been referred. It need not be pointed out that under different situations and conditions the requirement of compliance of the
principle of natural justice (varies). The courts cannot insist that under all circumstances and under different statutory provisions personal hearing
have to be afforded to the persons concerned. If this principle affording personal hearing is extended whenever statutory authorities are vested with
the power to exercise discretion in connection with statutory appeals, it shall lead to chaotic conditions. Many statutory appeals and applications
are disposed of by the competent authorities who have been vested with powers to dispose of the same. Such authorities which shall be deemed to
be quasi-judicial authorities are expected to apply their judicial mind over the grievances made by the appellants or applicants concerned, but it
cannot be held that before dismissing such appeals or applications in all events the quasi-judicial authorities must hear the appellants or the
applicants, as the case may be. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any
appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the
person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of
course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then
certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed
after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal
hearing had been afforded. This is all the more important in the context of taxation and revenue matters. When an authority has determined a tax
liability or has imposed a penalty, then the requirement that before the appeal is heard such tax or penalty should be deposited cannot be held to be
unreasonable as already pointed out above. In the case of Shyam Kishore vs. Municipal Corporation of Delhi (supra) it has been held by this
Court that such requirement cannot be held to be harsh or violative of Article 14 of the Constitution so as to declare the requirement of pre-deposit
itself as unconstitutional. In this background, it can be said that normal rule is [that] before filing the appeal or before the amount which he has been
directed to deposit as a tax or penalty. The non-deposit of such amount itself is an exception which has been incorporated in different Statutes
including the one with which [we] are concerned. Second proviso to sub-section (1) of Section 4-M says in clear and unambiguous words that an
appeal against an order imposing a penalty shall not be entertained unless the amount of the penalty has been deposited by the appellant.
Thereafter the third proviso vests a discretion in such Appellate authority to dispense with such deposit unconditionally or subject to such
conditions as it may impose in its discretion taking into consideration the undue hardship which it is likely to cause to the appellant. As such it can
be said that the statutory requirement is that before an appeal is entertained, the amount of penalty has to be deposited by the appellant; an order
dispensing with such deposit shall amount to an exception to the said requirement of deposit. In this background, it is difficult to hold that if the
Appellate authority has rejected the prayer of the appellant to dispense with the deposit unconditionally or has dispensed with such deposit subject
to some conditions without hearing the appellant, on perusal of the petition filed on behalf of the appellant for the said purpose, the order itself is
vitiated and liable to be quashed being violative of principles of natural justice.
6.................
In the present case on the application filed by the respondent, a direction was given to deposit only 25% of the amount of the penalty which had
been imposed against the said respondent. According to us, the Appellate authority passed a reasonable order which should not have been held to
be invalid by the High Court merely on the ground that before passing the said order the respondent was not given oral hearing, which amounted to
violation of the principles of natural justice.
Surjeet Singh Chhabra Vs. Union of India and others,
It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted
it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA.
When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an
opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute
concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But
in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to
cross-examine the witnesses is not violative of principles of natural justice. It is contended that the petitioner had retracted within six days from the
confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no
force in this contention. The Customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So
there is no need to call Panch witnesses for examination and cross-examination by the petitioner.
It is contended that under the Rules jewellery is exempted articles. Kara being a symbol of the religious wear by the Sikh community, it is a
jewellery exempted from the Act and it cannot be confiscated. In view of the admission that he had purchased gold, converted as Kara and
brought as such, he necessarily used it. Therefore, he is not entitled to the benefit of exemption. Under these circumstances, we do not find any
illegality in the order passed by the authority warranting interference.
Union of India (UOI) and Another Vs. G.T.C. Industries Limited., Bombay,
An adverse finding could not have been recorded against the GTC by relying upon the oral submissions made by a co-noticee at the hearing
without any support material on record, providing due opportunity to G.T.C. to meet the same.
For the reasons stated above, the appeal is accepted in part and directions issued by the High Court to the Collector to summon Shri. Sailo,
Liantilinga and Lachungunga for necessary examination and to afford an opportunity tot he GTC to cross-examine them are set aside. But the
order of the High Court setting aside the order of the Collector is sustained on the ground that the Collector had erred in placing reliance on the
submissions of Shri. Sailo. The direction issued by the High Court that the proceedings shall be taken by the officer other than the one who had
made the adjudication order shall also stand set aside. Otherwise also this direction has become infructuous with the passage of time. The
incumbent Collector is directed to decide the matter afresh on the basis of any other material obtained and also placed on record for the purpose
duly granting reasonable opportunity to GTC to produce evidence in rebuttal.
2006 (194) ELT 290
We may also, recall here, the decision of the Supreme Court in Jethamal Pithaji Vs. The Assistant Collector of Customs, Bombay and Another,
in which the Supreme Court held in paragraph 8 of the judgment that all the parts of a recorded statement of an accused are not entitled to equal
credit. An inculpatory part of the statement could be accepted even though the exculpatory part of the statement of the accused was rejected.
Where the inculpatory part of the statement of the accused is distinct and severable from the exculpatory part, if the Court finds the exculpatory
part to be inherently improbable, the other part of the statement which implicates the accused and which the Court sees no reason to disbelieve,
could be accepted.
As noted above, all the notices including the appellants were informed about all the material which was sought to be relied on against them along
with the relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show
cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the
proceedings. Statements of the two drivers of the vehicles from which contraband silver was recovered, the employee of the appellant Ashish
Kumar Chaurasia and the statements of the persons who were travelling in the vehicles for taking the contraband silver to Delhi as also the
statements of Ram Avatar Singhal, and the statements of independent persons before whom seizures were made clearly establish that all the
appellants were persons concerned with prohibited silver and were liable to imposition of penalty u/s 112 of the said Act. In such a situation
insistence for cross-examining one of them can be purely strategic with a view to raise a contention of violation of principles of natural justice. In
almost all the cases such persons dealing in contraband would refuse to be cross-examined on the ground that they are accused of an offence and,
had a fundamental right against testimonial compulsion under Article 20(3), and thereby create a situation where each one of them, in the same
breath would ask for cross-examination of the other and refuse to require that in matters like this, persons who had given information should be
allowed to be cross-examined by the co-notices on the statements made before the customs authorities. If cross-examination is to be allowed as a
matter of right then in all cases of conspiracy and joint dealings between the co-noticees in the commission of the offences in connection with the
contraband goods, they can bring about a situation of failure of natural justice by a joint strategic effort such co-noticees by each one refusing to be
cross-examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees. We,
therefore, hold that the appellants, including the appellant Ashish Kumar Chaurasia were not entitled to claim cross-examination as a matter of
right. The appellant Ashish Kumar Chaurasia had, in fact, cross-examined two official witnesses and at the end, he had only sought for time for
further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set
out in the impugned order and it is recorded that, ''various dates of personal hearing was given one after the other but neither Ashish Kumar
Chaurasia nor his advocate turned up"". It is clear from the record that the appellants had been give adequate opportunity of being heard in the
matter pursuant to the show cause notice issued u/s 124 of the said Act, and there has not been any violation of the principles of natural justice.
Mani Bhadras Trading Company Vs. The Commissioner of Customs, (Seaports - Exports),
Though it is needless to add that reasonable opportunity would include cross-examination, the judgment cited by the learned counsel for the
petitioner, wherein the learned Single Judge of this Court has held that cross-examination of witnesses are not to be dispensed with only on the
ground that the subject matter is a sensitive issue. I am of the considered view that the said judgment is distinguishable on facts and law from the
case on hand. While challenging the final order passed by the respondent, the petitioner has taken a stand that the denial of cross-examination of
the officers from DRI and GEQD would violate the principles of natural justice. A perusal of the judgments rendered by the Hon''ble Supreme
Court in Kanungo and Company Vs. Collector of Customs and Others, and Division Bench of this Court in (2009) 4 MLJ 417 (cited supra)
would clearly show that the principles of natural justice do not require cross-examination of the persons who have given information. However, in
this case, while replying to the show cause notice received from the respondent department, the petitioner has pointed out that there are certain
discrepancies in the materials annexed to the show cause notice and therefore, the petitioner prayed for cross-examination of the officers from DRI
and GEQD. Whereas, as rightly pointed out by the learned counsel appearing for the respondent, the documents relied upon by the respondent are
nothing but prints out taken from the hard discs of the Personal Computers belonged to the petitioner. It is open to him to point out discrepancies if
any, before the adjudicating authority. The cross-examination as sought for by the petitioner would in no way help the petitioner as there is no
material given or spoken to by the respondent department.
Shri A.L. Jalaludeen @ Chellavappa Vs. The Deputy Director,
As regards denial of opportunity to cross-examine Smt. Mariam Beevi and Ramraj the learned special counsel for the Enforcement Directorate
submitted that they have clearly stated that they did not know the names of those who came and gave money to them. These statements are also
natural. Smt. Mariam Beevi had stated that she received the money as per the instructions of her husband Sulthan during the last week of August.
This would not clearly amount of denial of natural justice.
Therefore, the case does not rest on the statement of the appellant alone, but it receives strength from the statement recorded from Smt.
Mariam Beevi and Ramraj and we do not see the denial of opportunity to cross-examine these two persons had in any way resulted in violation of
principles of natural justice. The two cases referred to by the learned counsel for the appellant can be distinguished on facts.
Therefore, these two decisions do not support to the case of the appellant. Therefore, we do not agree that the principles of natural justice has
been violated by not allowing the appellant to cross-examine these two persons.
A microscopic and panoramic view of the case would reveal that the petitioner, which is a partnership firm, is an 100% Exported Oriented Unit
functioning from the Madras Export Processing Zone, (in short referred as MEPZ) Kadaperi, Tambaram, Chennai, and engaged in import of duty
free raw material i.e. aromatic chemicals, from France, Dubai, Singapore and Japan, processes and manufactures perfumes, attars, bakhoor
powder and sandalwood oil and exports the same. The Development Commissioner, MEPZ, Chennai, had issued three licences for manufacture
of perfumes and cosmetics besides agarbatis and bakhoor with an annual capacity of 400 M.Ts. Under licence dated 27.03.2003, the petitioner
firm imported Aromatic Chemicals for manufacture of perfume cosmetics, agarbattis and bakhoor and under licence dated 26.03.2003, the
petitioner firm imported sandalwood logs and roots from M/s. ADEP Impex, Tanzania, for manufacture of Sandalwood oil. By another licence
dated 23.03.2004, the firm was permitted to trade in Sandalwood, as it could not be done within the period allotted and therefore, it stood
cancelled. The items imported like Aromatic Chemicals Herbs, Sandalwood, etc. are solely and exclusively used in the manufacture of perfumery
sprays, bakhoor powder, bakhoor oil, Indian attars and sandalwood oil, which are duly exported. According to the petitioner, every receipt of
imported material into the manufacturing facility/factory situated at MEPZ is duly accounted for in the statutory records and accounts maintained at
the Factory and subject to check and audit by the jurisdictional officers of Customs, Central Excise and the Development Commissioner and that
every export of manufactured items are duly documented in the statutory record, register and books of accounts, which are also checked and
cross verified in a strict manner by the aforesaid authorities. It is imperative that the documentation and movement of the goods in containers from
the factory of the petitioner to the concerned port is monitored and checked at every stage by officers of Customs. The procedure adopted at
MEPZ Gate regarding inward entry and outward movement of vehicles carrying goods is the responsibility of the Customs Office situated at the
gate. It is stated that the MEPZ Gate is manned by three Preventive Officers in three shifts round the clock under the direct supervision of
Superintendent of Customs. The overall control and supervision of the office is at the hands of a Deputy Commissioner of Customs. Besides the
Preventive Officers, the Customs formation also has examiners, appraisers posted, who carry out the function of examination and verification of
every goods, which enter or exits from the MEPZ. Two registers are maintained at the gate wherein details of imports and exports by the
companies situated at MEPZ would be registered respectively. The Registers will have details of Shipping Bills/Bill of Entry and other relevant
details pertaining to the goods and transportation thereof. With regard to entry of raw materials for export companies or the goods sent for job
work by Export Companies, ""passed-in"" and ""passed-out"" stamp will be affixed on the documents accompanying the goods.
While so, the petitioner filed Shipping Bill Nos.: 8974 and 9099 dated 10.12.2004 and 15.12.2004 respectively, for shipment of Indian attars
(bakhoor incense) weighing 130,000 kgs. each for export of the same to M/s. Sherzam Trading Enterprises, Singapore. The goods were stuffed
into the container and sealed with one time seal affixed by the Appraiser of Customs, attached to the Office of the Deputy Commissioner of
Customs, MEPZ, Tambaram, Chennai. In respect of Shipping Bill No: 8974 dated 10.12.2004, the connected export documents have been duly
filed with the said office, which has permitted for export under let-export order after affixation of the one time seal on the containers. While so, on
the basis of information, the Directorate of Revenue Intelligence, (hereinafter referred to as D.R.I.), Zonal Unit, Chennai, intercepted the containers
outside the MEPZ area in respect of Shipping Bill Nos.: 8974 and 9099 and recovered there from 4.314 M.Ts. of Sandalwood, besides 39.580
M.Ts. of Red Sanders from the said consignments. The petitioners claim that the 2nd petitioner was not present at the time of stuffing of the export
goods in the containers at the factory site and that the concerned Appraiser checks each and every box and package before affixing the seal on the
lock of the container and once the container is sealed it is the property of the Government. Therefore, the contention that the contraband was
concealed in the export consignment and taken out in the guise of Indian Attars is not correct according to the petitioner.
Pursuant to the investigation, seizures were effected and statements were recorded from various persons including the 2nd petitioner and
thereafter, the 2nd petitioner was arrested and detained under the provisions of COFEPOSA Act, 1974. The said order of detention was quashed
by this Court. That being the position, on completion of investigation, the Office of the Directorate of Revenue Intelligence, Zonal Unit, Chennai,
issued two show cause notices in F. No: VIII/48/83/2004-D.R.I. and another in F. No: VIII/48/83 A/2004-D.R.I. The procedure adopted by the
respondent in issuing these two show causes notices is called in question in this writ petition.
The petitioners contested the show cause notices by filing a reply on 03.08.2005. While doing so, the petitioners sought for cross examination
of those persons whose statements are relied on in the show cause notices. However, on 11.11.2011, the adjudicating authority rejected the
request of the petitioners for cross examination of the aforesaid persons on untenable grounds and directed the petitioners to file their statement of
defence. Aggrieved by the said order, petitioners approached this Court earlier in W.P. No: 27439 of 2011, which was disposed of on
08.12.2011, directing the respondents to dispose of petitioner''s representation dated 14.11.2011 within a time limit.
Subsequent to that, the respondents took up the matter and passed an order dated 13.01.2012 and rejected petitioner''s demand for cross
examination of the persons named in the show cause notice. Thereafter, the show cause notices were taken up for adjudication and by the
impugned Order-in-Original No: 26 of 2012 dated 18.01.2012. Questioning the same, the petitioners raised a point that denial of the right to cross
examination of the witnesses whose statements are sought to be relied upon in any proceeding would result in penal and civil consequences is a
very fundamental theory and therefore, such a right cannot be denied.
Rejecting the above claim, at the first instance the Assistant Commissioner of Customs, Air Commissionerate, Meenambakkam, Chennai-600
027, filed a very cryptic counter affidavit without answering any querry raised by the petitioner. Later on they filed an additional Counter affidavit
by the Deputy Commissioner of Customs (Legal), Air Cargo Complex, Meenambakkam, Chennai-600 027, stating that in this case smuggling was
unearthed by the Directorate of Revenue Intelligence who issued the show cause notice to the petitioner and others. The Show Cause Notice
dated 13.06.2005 was received from the Directorate of Revenue Intelligence by the Commissionerate and after completing formalities, it was
taken up for adjudication on 05.09.2011. On 05.09.2011, a personal hearing was offered to all the four noticees as well as for the counsel for the
petitioners. However, the counsel for the petitioner, in his letter dated 2.9.2011, sought for an adjournment of the case and Mr. Palanikumar,
counsel for co-noticee Mr. Selvaraj, vide his letter dated 3.9.2011, requested for an adjournment and it was granted for both of them. Three more
personal hearings were given on 26.09.2011, 18.10.2011 and on 11.11.2011. Counsel for Mr. Selvaraj, co-noticee, submitted a letter on
20.09.2011 with judgments and requested for leniency and mercy while passing the order. Another adjournment sought for was also granted. The
hearing notice sent to yet another co-noticee M/s. Chennai Essential Oils and Aromatics was returned undelivered and then the notice was placed
on the notice board. The second personal hearing was fixed on 18.10.2011 by due despatch of hearing notice to all concerned. But none
appeared and for the third personal hearing fixed on 11.11.2011, counsel for the present petitioners appeared. Before proceeding further, W.P.
No: 27439 of 2011 was filed before this Court. This Court, by its order dated 08.12.2011, disposed of the said writ petition with a direction to
dispose of petitioner''s representation dated 14.11.2011 within a period of three weeks. By a detailed order dated 13.01.2012, the respondent
disposed of the petitioner''s representation, denying the right to cross examine the said persons. As there is no challenge to this order dated
13.01.2012, it had attained finality. On 18.01.2012, the respondent, passed the impugned order in Original No: 26 of 2012 confiscating the
prohibited goods and imposing penalty of Rs. 30 lakhs on the 1st petitioner; Rs. 20 lakhs penalty on the 2nd petitioner and Rs. 20 lakhs on Mr.
Selvaraj, proprietor of the supplier of Red Sanders. The impugned order was duly communicated to all concerned and the one sent to M/s.
Chennai Essential Oils and Aromatics has been returned undelivered and hence, it was placed on notice board.
In obedience to the order passed by this Court, the respondent passed the order and disposed of the representation of the petitioner. In the
personal hearing offered, the learned counsel for one of the noticees only prayed for leniency while others only took adjournments. It is contended
by the respondents that the only remedy available tot he petitioner is prefer an appeal before the CESTAT and in order to avoid payment of pre-
deposit, the petitioner has filed this writ petition.
As regards the denial of right of cross examination of the four persons named in the show cause notices, the respondents contended that the
role played by the said four persons do not in any way relate to the act of smuggling perpetrated by the petitioner. To that effect it is submitted that
Mr. Raghu is a driver of the trailer, who says that he brought the vehicle inside MEPZ, left it there and then, he was asked to wait outside and that
after putting the customs seal, he was asked to take the vehicle outside the MEPZ. Mr. Mohammed Nizam is the manager of the petitioner and his
own uncle is the partner of the petitioner-firm. He says that Mr. Selvaraj used to send his persons Mr. Dhanapal and Mr. Yuvaraj, who would stuff
the red sanders at the factory of the petitioner.
By that time, all employees of the petitioner would not know as they used to go outside the factory; that as per the latest guidelines, regular
examination by the customs is not required for the import and export cargo for the units situated at MEPZ. Another named witness, Mr. Dhanapal
and Mr. Yuvaraj are the employees of the supplier. They gave a voluntary statement u/s 108 of the Customs Act admitting that they would stuff
red-sanders and place them at the back side of the cargo and in the front side declared goods of agarbathi, etc. would be loaded. Beyond that
they did not depose. Therefore, the cross examination is redundant and the claim of the petitioner was rejected by the authorities vide its order
dated 13.01.2012. That rejection order had attained finality. Therefore, the plea of the petitioner that the impugned order suffers from violation of
principles of natural justice cannot be sustained as it is not legally maintainable.
A perusal of the above claim reveals that the right of the petitioner for cross examination of the persons named in the show cause notice can be
visualised in one angle viz. that the counsel for the petitioner and the counsel for the co-noticee requested for an adjournment and it was granted for
both of them. Further, three more personal hearings were granted on 26.09.2011, 18.10.2011 and 11.11.2011 and there was request on
20.09.2011, by the counsel for the co-noticee, who pleaded for leniency and mercy while passing the order. Another adjournment sought for was
also granted. The hearing notice sent to M/s. Chennai Essential Oils and Aromatic was returned undelivered and then the notice was placed on the
notice board. In the meantime, petitioner filed a writ petition in W.P. No: 27439 of 2011 before this Court and the said writ petition was disposed
of on 08.12.2011 by directing the respondents to consider the petitioner''s representation dated 14.11.2011. Thereafter, by a detailed order dated
13.01.2012, the respondents rejected the petitioner''s claim for cross examination of the said persons named in the show cause notices. As there is
no challenge to this order dated 13.01.2012, it has attained finality. But, only a consequential order passed by the respondents in Order in Original
No: 26 of 2012 alone was challenged wherein the confiscation of the prohibited goods was ordered and penalty of Rs. 30 lakhs was imposed on
the 1st petitioner; penalty of Rs. 20 lakhs was imposed on the 2nd petitioner and penalty of Rs. 20 lakhs was imposed on Mr. Selvaraj, proprietor
of the supplier of Red Sanders. Immediately, without resorting to any further remedy, petitioners have rushed to this Court as if there is denial of an
opportunity of cross examination. It is neither explained nor made out as to why the petitioners have not challenged the order dated 13.01.2012,
wherein the petitioners'' claim for cross-examination of the four persons named in the show cause notices has been rejected. Now, the
consequential order confiscating the goods and imposing penalty on the individuals alone is questioned.
As regards the question of confiscation of prohibited goods and imposition of penalty on individuals involved in dealing with prohibited goods
are all matters on merits, which has to be adjudicated by the petitioners before the appropriate forum, which is effectively available. When the
petitioners have not challenged the order dated 13.01.2012, on the question of denial of opportunity to cross examine the named persons, this
Court cannot look into the matter as if there is violation of principles of natural justice. On the other hand, the order challenged being one which
confiscated the prohibited goods and imposed penalty on the individual for their respective act, is an issue to be looked into by the appropriate
appellate authority namely the CESTAT and without availing such a remedy, the petitioners have rushed to this Court.
It is true that our system of jurisprudence is based on adversarial mechanism and in the case on non adversarial process the only difference is
with regard to the burden of proof. But that does not dispense with the basic need to produce witness for cross examination if the statement of the
witnesses has to be relied upon by the prosecution or by the department and it is also a fundamental principle that right to cross examine the
witnesses whose statement is sought to be relied upon in any proceedings resulting in penal or civil consequences and such a right can be asserted
only by challenging the denial of such right. In the instant case, the denial was made by an order dated 13.01.2012, which has attained finality as
there is no challenge to the same. The right of cross examination in a proceeding which results in confiscation and imposition of penalty, can be
adjudicated only before the appropriate appellate forum and not under Article 226 of the Constitution of India as if there is a denial of an
opportunity and there is violation of principles of natural justice.
In my considered opinion, the approach made by the petitioners by filing this writ petition without availing the appropriate appellate remedy by
filing an appeal before the CESTAT is not appropriate in the given circumstances as the challenge is only to the order confiscating the prohibited
goods and imposing penalty on the individuals. The reliance made by the counsel appearing for the petitioners on the various decisions of the High
Court as well as the Hon''ble Supreme Court of India are all matters concerned with the denial of an opportunity to cross examination. In the
absence of any challenge to such a denial, these decisions cannot come to the rescue of the petitioners. For the foregoing reasons and the
discussions made above, I am of the considered view that the writ petition deserves no merit consideration and accordingly, the same is dismissed.
Consequently, connected miscellaneous petitions are also dismissed. However, this order shall not stand in the way of the petitioners approaching
the appellate forum in the manner known to law and in such an event, the period during the pendency of this writ petition shall be excluded for the
purpose of limitation and also it is made clear that this order will not preclude the petitioner from challenging any other proceeding if he is aggrieved
in the matter concerned. There shall be no orders as to the costs.