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Issues: (i) whether the appellant was entitled to cross-examination of the two witnesses whose statements formed the basis of the case; and (ii) whether penalty could be sustained simultaneously under both Section 112(a) and Section 112(b) of the Customs Act, 1962.
Issue (i): Whether the appellant was entitled to cross-examination of the two witnesses whose statements formed the basis of the case.
Analysis: The request for cross-examination was found to be generally vague, but the appellant had limited the request to two specific witnesses who were material to the department's case. In such a situation, fairness required that the request be considered in the context of the statements relied upon and the principles of natural justice.
Conclusion: The appellant was entitled to cross-examination of Shri Shailesh K. Thakker and Shri Rajesh Hemandas Bhagia.
Issue (ii): Whether penalty could be sustained simultaneously under both Section 112(a) and Section 112(b) of the Customs Act, 1962.
Analysis: The two sub-clauses operate on mutually exclusive bases depending on the nexus with the goods, and penalty under both provisions for the same conduct was not legally proper.
Conclusion: Penalty could not be imposed under both Section 112(a) and Section 112(b) of the Customs Act, 1962.
Final Conclusion: The penalty order was set aside and the matter was remanded for fresh adjudication after allowing cross-examination of the identified witnesses.
Ratio Decidendi: Where statements of specific witnesses are material to the adjudication, a limited and relevant request for cross-examination should be allowed; additionally, mutually exclusive penalty provisions cannot be concurrently invoked for the same liability.
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