2009 (6) TMI 558 - AT - Customs

Tribunal upholds decision, finds no breach of natural justice, affirms authority's findings based on evidence

The Tribunal dismissed the appeal, finding no non-compliance with natural justice principles and confirming the adjudicating authority's application of ... Adjudication- Natural Justice- In the present appeal the appellants challenge the order dated 13-12-08 passed by the Commissioner of Customs, Nhava Sheva, whereby the assessable value of the goods imported under 26 Bills of Entry during the period August, 2004 to February, 2005 was fixed to the tune of ₹ 3,21,28,452/. at US 542 PMT in terms of Rule 6 of Customs Valuation Rules, 1988 and thereupon the differential Customs duty amounting to ₹ 2,04,34,079/- was ordered to be recovered under Section 28(2) of the Customs Act, 1962 along with interest thereon under Section 28AB of the said Act. The Commissioner has also finally assessed the Bill of Entry dated 22-3-08 at the rate of USD 542 PMT under Section 18 of the said Act and has held that the differential duty of ₹ 10,48,291/- to be recoverable. Held that- In a case in hand, apart from bald statement of similar allegation in the retraction affidavit, there was a clear admission about the statement which was originally made by the appellants to the Customs authorities regarding nature of the goods imported. Taking into consideration all the facts and circumstances on record and the law laid down by the Apex Court, we find no substance in the contentions sought to be raised on behalf of the appellants and consequently the appeal fails and is hereby dismissed. Issues Involved:1. Non-compliance with principles of natural justice.2. Non-application of mind by the adjudicating authority.Analysis:1. Non-compliance with Principles of Natural Justice:The appellants challenged the impugned order on the grounds of non-compliance with the principles of natural justice, specifically the failure to provide copies of statements relied upon and the refusal to allow cross-examination of the persons whose statements were recorded.- Failure to Provide Copies of Statements:The appellants argued that the adjudicating authority did not furnish copies of the statements relied upon for fixing their liability, specifically the statement of Shri Siraj Hamid, the proprietor of the appellant firm, recorded under Section 108 of the Customs Act. The respondents contended that the appellants had full knowledge of the contents of the statement, as evidenced by their reply to the show cause notice. The Tribunal noted that the records did not show that the copy was given, but the reply to the show cause notice indicated that the appellants were aware of the statement's contents. The Tribunal concluded that failure to provide the copy did not result in non-compliance with the principles of natural justice as the appellants were aware of the statement's contents.- Refusal to Allow Cross-Examination:The appellants contended that the refusal to allow cross-examination of the persons whose statements were relied upon amounted to non-compliance with the principles of natural justice. The Tribunal referred to the Supreme Court's decision in Swadeshi Polytex Ltd., which held that cross-examination should be allowed if the authority intends to rely on the statements. However, the Tribunal noted that the statement of Shri Hamid was relied upon only for the nature of the imported goods, and the appellants were aware of its contents. The Tribunal concluded that the refusal to allow cross-examination did not result in prejudice to the appellants, and therefore, there was no violation of the principles of natural justice.2. Non-Application of Mind by the Adjudicating Authority:The appellants argued that the adjudicating authority failed to apply its mind to the materials on record, specifically the IIT report submitted along with the reply to the show cause notice.- Non-Consideration of IIT Report:The appellants contended that the IIT report, which confirmed that the goods imported were industrial soap flakes Grade II, was not considered by the adjudicating authority. The Tribunal noted that the records did not disclose any copy of such a report being furnished along with the reply to the show cause notice. The Tribunal found that the non-consideration of the IIT report could not be a ground to accuse the adjudicating authority of non-application of mind, as the report was not placed on record.- Comparison of Imported Goods:The appellants argued that the conclusions about the comparison of the contents of the product imported by them with the products imported by other importers were arrived at without any supporting material. The Tribunal noted that the adjudicating authority referred to various materials, including the opinion of Dr. Anirudha B. Pandit, investigation reports, and documents recovered from the appellants' premises. The Tribunal concluded that the findings were based on the materials on record and could not be said to be without application of mind.Conclusion:The Tribunal dismissed the appeal, holding that there was no non-compliance with the principles of natural justice and that the adjudicating authority had applied its mind to the materials on record. The Tribunal found no substance in the contentions raised by the appellants and upheld the impugned order.