1990 (1) TMI 195 - AT - Customs

Tribunal overturns penalty for Customs Act violation, citing procedural errors and lack of cross-examination

The Tribunal set aside the penalty imposed on the appellant under Section 112 of the Customs Act, 1962, due to procedural irregularities and violation of ... Adjudication - Evidence Issues:- Imposition of penalty under Section 112 of the Customs Act, 1962 without affording appellant an opportunity of cross-examination.- Violation of principles of natural justice in the adjudication process.- Non-availability of witnesses for cross-examination.- Consideration of third-party statements without giving appellant a chance to challenge them.Analysis:The appeal in this case was against the order of the Additional Collector of Customs imposing a penalty on the appellant under Section 112 of the Customs Act, 1962. The penalty was imposed in connection with the seizure of foreign-origin pants cloth. The appellant contended that the impugned order was violative of the principles of natural justice as he was not given the opportunity to cross-examine witnesses whose statements were relied upon. The Tribunal had previously remanded the matter to the original authority for re-consideration, but witnesses did not turn up for cross-examination, leading to the decision being made based on third-party statements without the appellant's involvement in the process.The Adjudicating authority acknowledged that witnesses did not appear for cross-examination, but proceeded with the adjudication without giving the appellant a fair chance to challenge the statements against him. The judgment highlighted the importance of affording the appellant an effective opportunity for cross-examination when penal proceedings are based on third-party statements. It was emphasized that non-availability of witnesses should not be a ground to penalize the appellant when his right to cross-examination is not fulfilled. The judgment also referenced a criminal prosecution where the Public Prosecutor conceded that there was no evidence against the appellant in the same matter, further supporting the appellant's argument regarding lack of evidence.Ultimately, the Tribunal held that the penalty imposed on the appellant was not sustainable in law due to the procedural irregularities and violation of natural justice. The Tribunal decided to set aside the penalty on technical grounds and allowed the appeal, considering the Department's inability to secure witnesses for cross-examination. The judgment concluded that remanding the matter again would not serve any useful purpose under the circumstances presented.