2013 (8) TMI 885 - AT - Customs

Adjudicating authority's failure to comply with tribunal directions leads to appeal success

RAJ KUMAR MUNDRA Versus COMMISSIONER OF CUSTOMS, KANDLA

The appeals were allowed as the adjudicating authority failed to comply with CESTAT's remand directions, including the supply of tampered advance licenses ... Illegal imports done - Forged license - Held that:- Later circular dated 5-12-1994 was not the subject document available at the time of first adjudication but came into existence later when the case was remanded by the Tribunal - even if the forged/tampered advance licences were not relied upon documents in the show cause notices but the same became relied upon documents in the light of appellate proceedings and the remand directions of this Bench. The argument taken by the Revenue that tampered/forged advance licences were not relied upon documents in the show cause notices and are not available with the Department is not acceptable as providing of such advance licences to the appellants is a must to explain their conduct. Also, it is unacceptable that cross-examination of Customs officers is not necessary in this case. Accordingly, in the present proceedings, the adjudicating authority should not have gone beyond the remand directions in view of the settled law by the judgment of Hon’ble Gujarat High Court in the case of Milcent Appliances Pvt. Ltd. v. UOI (2005 (3) TMI 161 - HIGH COURT OF GUJARAT AT AHMEDABAD) - Decided in favour of assessee. Issues Involved:1. Non-compliance with CESTAT's remand directions.2. Supply of tampered advance licenses.3. Cross-examination of Customs officers.4. Adjudicating authority's adherence to remand directions.Detailed Analysis:1. Non-compliance with CESTAT's Remand Directions:The appeals were filed against various Orders-in-Original issued by the Commissioner of Customs, Kandla. These cases were initially booked by DRI on the grounds of imports made against forged/tampered licenses in collusion with the appellants. After detailed investigations, penalties were imposed under Section 112(a) of the Customs Act, 1962. The CESTAT remanded the matter back to the Commissioner of Customs, Kandla, directing the supply of tampered advance licenses and allowing cross-examination of Customs officers. However, the adjudicating authority ignored these directions, leading to the current appeals.2. Supply of Tampered Advance Licenses:The CESTAT's order emphasized the necessity for the Revenue to supply tampered advance licenses to the appellants. The adjudicating authority, however, claimed that such licenses were never recovered during the investigation and were not relied upon in the show cause notices. Despite efforts to obtain these documents, they were deemed unavailable. This non-compliance with CESTAT's directions was a significant point of contention.3. Cross-examination of Customs Officers:The CESTAT also directed the adjudicating authority to allow cross-examination of Customs officers wherever possible. The adjudicating authority argued that cross-examination was unnecessary as the officers would only confirm that they cleared goods against the licenses presented at the time. No substantial efforts were made to facilitate this cross-examination, further ignoring the CESTAT's directives.4. Adjudicating Authority's Adherence to Remand Directions:The adjudicating authority bypassed the remand directions, leading to a clear violation of procedural justice. The CESTAT highlighted that if the adjudicating authority had reservations about the non-execution of directions, a suitable modification application or an appeal should have been filed. The adjudicating authority's refusal to comply with the CESTAT's directions, such as providing tampered licenses and facilitating cross-examination, was deemed unacceptable.Conclusion:The appeals were allowed on the grounds that the adjudicating authority failed to comply with the CESTAT's remand directions. The CESTAT reiterated the importance of adhering to superior tribunal directions, citing the judgment of the Gujarat High Court in the case of Milcent Appliances Pvt. Ltd. v. UOI. The adjudicating authority's actions were found to be in clear violation of the principles of justice, leading to the setting aside of the impugned orders.