Relevancy of statements under Section 138B of Customs Act and cross-examination entitlement denied as not absolute

Relevancy of statements under Section 138B is limited to proving truth of facts in prosecutions and does not itself create an absolute right to cross-examination; whether cross-examination should be permitted must be considered during adjudication and the adjudicating officer retains discretion to weigh such statements, with subsection (1)(b) recognising unavailability exceptions. Delay and intervening proceedings including recourse to the Settlement Commission were relevant to credibility of the belated cross-examination request, and the challenge based solely on non-grant of cross-examination after many years was rejected by the court.

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Issues involved:
1. Breach of principles of natural justice.
2. Availability of alternate statutory remedy.
3. Relevancy of statements under Section 138B of the Customs Act.
4. Delay in seeking cross-examination.

Summary:

1. Breach of principles of natural justice:
The petitioner contended that the impugned order-in-original should be set aside due to a breach of principles of natural justice, as they were not provided an opportunity to cross-examine three witnesses whose statements were recorded during the investigation. The court noted that the petitioner had ample opportunity during the adjudication process, including representation by counsel and submission of detailed replies. The adjudicating officer extensively considered the facts and materials on record, including the petitioner's submissions.

2. Availability of alternate statutory remedy:
The respondents argued that the petitioner had an alternate statutory remedy of filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) under Section 129A of the Customs Act. The court observed that the petitioner chose to file the writ petition to avoid the mandatory pre-deposit required for the appeal. The court emphasized that the petitioner should have exhausted the statutory remedy before approaching the High Court.

3. Relevancy of statements under Section 138B of the Customs Act:
The petitioner argued that under Section 138B of the Customs Act, they should have been allowed to cross-examine the witnesses. The court clarified that Section 138B pertains to the relevancy of statements in prosecution for an offense under the Customs Act and does not per se provide for cross-examination. The court held that the provision does not create an absolute right to demand cross-examination and must be considered in the context of the adjudication proceedings.

4. Delay in seeking cross-examination:
The court noted that the show cause notice was issued in March 2000, and the request for cross-examination was made only in February 2017, after a delay of more than 17 years. The petitioner had also approached the Settlement Commission and the Supreme Court during this period. The court found the delay indicative of a lack of bona fides on the petitioner's part.

Conclusion:
The court dismissed the petition, finding no merit in the petitioner's contentions. The court held that the impugned order-in-original was not solely based on the statements of the three witnesses but was supported by various other direct evidences. The petitioner's plea was viewed as an attempt to avoid liability by raising hyper-technical issues. The court emphasized the need to exhaust statutory remedies before seeking judicial intervention.

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