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of <h1>**Drawback recovery requires challenging original assessment order first, denial of cross-examination violates natural justice**</h1> <h3>M/s Varun Enterprises, M/s SRM Pvt. Ltd. and M/s Contessa Commerical Co. P. Ltd. Versus Commissioner of Customs, Ludhiana</h3> M/s Varun Enterprises, M/s SRM Pvt. Ltd. and M/s Contessa Commerical Co. P. Ltd. Versus Commissioner of Customs, Ludhiana - TMI ISSUES: Whether the export goods, specifically gaskets, were mis-declared to fraudulently claim drawback and other export incentives under the Customs Act, 1962.Whether statements recorded during investigation can be relied upon without following the procedure prescribed under Section 138B of the Customs Act, 1962, including examination and cross-examination of witnesses.Whether the imposition of redemption fine is valid in the absence of seizure or confiscation of goods.Whether the department can recover drawback already sanctioned without challenging the original assessment order.Whether the principles of natural justice were violated by denying cross-examination of persons whose statements were relied upon.Whether findings in respect of other goods exported by related parties can be extrapolated to the export of gaskets by the appellants.Whether the suppliers alleged to be non-existent were properly investigated and verified by the department. RULINGS / HOLDINGS: The court held that the impugned goods (gaskets) were examined, tested, and allowed for export by officers, and there was no evidence of mis-declaration with respect to these goods; thus, the goods are not liable for confiscation and no fine or penalty can be imposed.The adjudicating authority erred in relying on statements recorded during investigation without following the mandatory procedure under Section 138B of the Customs Act, including examination and cross-examination of witnesses; such statements cannot be admitted as evidence.Redemption fine cannot be imposed where goods were neither seized nor liable for confiscation at the time of adjudication, as per Section 125 of the Customs Act.Drawback already sanctioned after due assessment cannot be recovered without first challenging the original assessment order; collateral challenge through separate show cause notice is not legally tenable.The denial of cross-examination of witnesses whose statements were relied upon amounted to violation of the principles of natural justice, vitiating the proceedings.The findings regarding mis-declaration of other goods exported by related persons cannot be extrapolated to the export of gaskets by the appellants without corroborative evidence specific to those goods.The department failed to conduct proper inquiries at all addresses of the alleged non-existent suppliers; the adjudicating authority did not examine these suppliers under Section 138B, thereby weakening the case against the appellants. RATIONALE: The court applied the legal framework under the Customs Act, 1962, particularly Sections 113(d), 114(iii), 125, 138B, and the procedural safeguards under Section 9D of the Central Excise Act (analogous to Section 138B of Customs Act) regarding admissibility of statements recorded during investigation.The court relied on precedent emphasizing that statements recorded during investigation must be admitted in evidence only after examination and cross-examination of the declarants before the adjudicating authority, ensuring compliance with natural justice.The principle that redemption fine is an option only when goods are liable for confiscation and are available at the time of adjudication was reaffirmed, consistent with statutory language and judicial precedents.The court followed the Supreme Court's rulings on the finality of assessment orders and the proper procedure for recovery of drawback or refund claims, holding that such recovery cannot be initiated without challenging the original assessment.The court recognized the importance of specific and corroborative evidence relating to the goods in question, rejecting extrapolation of findings from other investigations without direct proof.The decision reflects adherence to statutory procedural safeguards and the doctrine that administrative orders must be supported by evidence admissible under law and respect principles of natural justice.
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