Varsha Polyproducts Pvt Ltd VERSUS  C.C.-Kandla

CUSTOMS, EXCISE & SERVICE TAX 

APPELLATE TRIBUNAL WEST ZONAL

BENCH AT AHMEDABAD

 

REGIONAL BENCH – COURT NO. 03

CUSTOMS Appeal No. 13798 of 2014-DB

 

[Arising out of Order-in-Original/Appeal No KDL-COMMR-19-2014-15 dated 20.08.2014 passed by Commissioner of CUSTOMS-KANDLA]

Varsha Polyproducts Pvt Ltd

VERSUS 

C.C.-Kandla

 

WITH

 

CUSTOMS Appeal No. 13799 of 2014-DB

 

[Arising out of Order-in-Original/Appeal No KDL-COMMR-19-2014-15 dated 20.08.2014 passed by Commissioner of CUSTOMS-KANDLA]

Shantilal Jain

VERSUS

C.C.-Kandla

 

AND

 

CUSTOMS Appeal No. 13800 of 2014-DB

 

[Arising out of Order-in-Original/Appeal No KDL-COMMR-19-2014-15 dated 20.08.2014 passed by Commissioner of CUSTOMS-KANDLA]

Kandla Clearing Agency Pvt Ltd

VERSUS

C.C.-Kandla

APPEARANCE:

Shri Paresh M Dave, appeared for the Appellant

Shri. Anoop Kumar Mudwel, Superintendent (Authorized Representative) for the Respondent

 

CORAM: HON’BLE MEMBER (TECHNICAL), RAJU HON’BLE MEMBER (JUDICIAL), SOMESH ARORA

 

FINAL ORDER NO.A / 11536-11538 /2023

 

RAJU

DATE OF HEARING:17.07.2023 DATE OF DECISION:17.07.2023

 

 

These appeals have been filed by M/s. Varsha Poly Products Pvt Ltd & Ors., against order of Commissioner confirming duty and imposing penalties.

2. Heard both sides

 

• This is the case of misuse of advance license. The matter has been remanded by Tribunal three times, in the last remand order, the Tribunal as observed as follows:

“5. The adjudicating authority in impugned order has taken up the matter for de-novo adjudication and against specific request of the appellant herein for cross-examination of the persons whose statements are relied upon for penalizing them under Section 112 of Customs Act, 1962, the adjudicating authority has recorded broadly that the need not be granted as persons whose cross-examination is being sought are either co-assessee or co-noticee and could vitiate the said adjudicating proceedings. It is also the findings that the de- novo proceedings as directed by the tribunal did not specifically mention about any cross-examination to be granted”

 

 

6. Suffice to stay that de-novo proceedings would mean that the issue needs to be heard right from the reply to the show cause notice, in our view, Id. Commissioner has erred in not granting cross examination of concerned persons on a very flimsy reason.

 

7. Be that as it may, since the issue is agitated before us and there being violation of principles of natural justice by not granting cross- examination, we are of the view that Id. Adjudicating authority should be given an opportunity to abide by the principles of natural justice. Accordingly, the impugned order is set aside and the matter remanded to the adjudicating authority to reconsider the issue afresh in respect of request made by the appellants for the cross-examination of the persons and pass an order after following the principles of natural justice.

 

8. In our view, if the adjudicating authority is denying the cross- examination of the persons sought for, then he should not rely upon the statements of the persons whose cross examination is denied.”

 

 

• Thereafter the matter was taken up for adjudication and the Commissioner presented the following for the purpose of cross-examination:

1. ShriL Satya Srinivas, the then  Director General (Audit), New Delhi.

 

2. ShriL Vartak, Superintendent (Retired)

 

3. ShriSubhash Biyala, an employee of M/s. Varsha Group,

 

 

• Thereafter the matter was posted for hearing repeatedly however, on some pretext or other the appellant did not respond neither for hearing nor by filing reply though they have themselves sought permission to file final reply. Consequently, the Commissioner decided to proceed without granting them the additional final hearing as sought by them and without taking on record the final reply which the appellants were seeking to file. The Commissioner observed as follows:

“25.  After completing the cross-examination on 20.6.2014, the learned Advocate Shri Paresh Dave had requested for four weeks time for filing final reply in the matter

 

which was allowed by the adjudicating authority. The learned advocate for also requested for one more personal hearing before concluding the matter. Accordingly, personal hearing was granted to them on 18.7.2014, but no one attend the hearing. However, Shri Paresh Dave, Advocate for noticee vide his letter dated 17.7.2014 requested for granting another date of hearing stating that his clients have applied for certified copies of Memo of Writ Petition No. 323/98 filed by them before the Hon’ble Mumbai High Court along with all the replied, rejoinders etc. pleading filed by all the parties involved in the petition and also for certified copies of all the orders passed by the Hon’ble High Court in this case which was not received by them yet. The said request of postponement of hearing was considered by the adjudicating authority by granting another date of hearing on 25.7.2014 which was also not attended by the party/advocate stating that Shri Paresh Dave, Advocate is going out of station for some religious purpose and therefore, requested to grant hearing on 1.8.2014. Considering the request and gravity of the case the hearing was again re-fixed for 01.08.2014. The learned advocate was again requested to postpone the case for another date as he is suffering from severe throat infection and fever which was considered and re-fixed for 19.08.2014. Again on 19.08.2014 no one appeared for personal hearing but the learned advocate requested for postponement of the hearing to another date as Shri Paritosh Gupta, who was to appear for hearing is out of station.”

 

3. We noticed that The Commissioner has shown tremendous patience and offered ample opportunity to the appellant to present their case by appearing for personal hearing or by filing final reply as they had requested. We cannot find fault with Commissioner proceeding in such circumstances to decide the case without further notice on the basis of available record.

 

 

4. On the other hand, we also find that the Tribunal in the order dated 30 January, 2014 had observed in para 8 that no reliance will be placed on the statements of persons who have not been offered for cross-examination. We notice from para 38, 40 & 41 that reliance has been placed in statements of Shri Shantilal Jain, Shri Naresh Shah & Shri Mahesh Ganatra though they were not presented for cross-examination. In these circumstances as per directions of Tribunal in its order dated 30 January, 2014, no reliance could

 

have been be placed on the statements of Shri Shantilal Jain and Shri Naresh Shah & Shri Mahesh Ganatra.

 

 

5. In these circumstances, we are constrained to set aside the order and remand the matter back to the original Adjudicating Authority to follow the directions of Tribunal order dated 30 January, 2014 and decide the matter
6. Appeals are allowed by way of remand. All issues are kept open.

 

(Dictated & Pronounced in the open Court)

 

(RAJU) MEMBER (TECHNICAL)

(SOMESH ARORA) MEMBER (JUDICIAL)