TaxTMI 
TaxTMI 
2009 (6) TMI 558
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.... 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 Rs.10,48,291/- to be recoverable. He has ordered appropriation of an amount of Rs.12,00,000/- voluntarily paid by the appellants against the duty confirmed. The goods imported under 26 Bills of Entry are ordered to be confiscated under Section 111(m) of the said Act and as the goods are not available for confiscation, they are allowed to b on payment of fine of Rs.One Crore in lieu of confiscation of the goods under Section 125 of Customs Act, 1962. Similarly, the goods imported under Bill of Entry dated 22-3-08 are ordered to be confiscated and as the goods are not available for confiscation, they are allowed to be redeemed on payment of fine of Rs.Four lakhs in lieu of confiscation. Further penalty of Rs.2, 14, 82,369/- has been imposed upon the appellants under Section 114A of the said Act. 2. The impugned order is sought to be challenged on two grounds, namely, failure to comply with the principles of natu....
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....nts, fails to deal with the point regarding cross examination which was requested for by the appellants. He has further submitted that even though IIT report in respect of the goods imported by the appellants was duly submitted to the adjudicating authority along with the reply to the show cause notice, the authority failed to consider the same. Referring to the finding regarding corn- parson of the appellants' product with the products imported by other importers, he has submitted that the report of IIT referred to therein, cannot be applied to the appellants' product as the IIT report in respect of the appellants' product disclosed total Fatty Matter of having 54.4 % whereas the report referred to TFM content of 73%. According to the ld. advocate for the appellants, taking into consideration the facts and circumstances of the case, therefore, the same reveals clear violation of principles of natural justice in the matter and further total non application of mind by the lower authority to the relevant materials placed on record. On the other hand the ld. D.R. while defending the impugned order has submitted that the contents of the reply to the show cause notice clearly disclosed ....
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....on 4-5-2005 under Section 108 of the said Act. it is essentially on the point of importation of the goods of the nature of Soap Noodles instead of Flakes. The order specifically refers to the fact that the reference to samples from various consignment of soap noodles imported by the other importers had been compared with. Regarding its previous consignment, he stated that all the materials imported by him were not in flakes form but they were in noodles form. Being so, it is the contention on behalf of the appellants that the very basis for proceeding against the appellants are the averments made by the proprietor of the appellants in his statement recorded under Section 108 of the said Act and yet no copy thereof was given to the appellants. 5. As far as the fact that no copy of the statement was given to the appellants, undoubtedly, the records before us nowhere disclose that the copy thereof was ever given to the appellants either along with the show cause notice or at anytime thereafter. The contention on behalf of the respondents, however, is that the reply to the show cause notice filed by the appellants itself discloses full knowledge of the contents of such statement to ....
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.... facts which are to the thorough knowledge of the appellants, can it be said that there was violation of principles of natural justice on account of failure on the part of the respondents to furnish copies of such statement, contents of which are well within the knowledge of the appellants? It is pertinent to note that the statement was recorded under Section 108 of the said Act. It is settled law that copies of such statements are to be immediately furnished to the deponent. Even in the affidavit filed by the appellants retracting his earlier statement, there was no allegation made of failure on the part of the Custom authorities to furnish copy of the statement to the appellants. It is to be noted that the affidavit apparently disclosed that the appellant was identified by his advocate. In other words, while submitting the retraction affidavit, the appellants had availed the help of legal expert in drafting the retraction affidavit. Added to this, as already pointed out, the appellants themselves had stated in the reply to the show cause notice as to what was stated in his statement to the Customs Authorities. This abundantly discloses complete knowledge of the statement in quest....
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.... paragraph in Amba Lal's case would reveal that a copy of the statement recorded by the Customs authorities was never furnished to the deponent. It was also recorded in a language not known to the deponent. The efforts on the part of the deponent to obtain copy thereof had failed. In those circumstances, the Apex Court held that in case the authorities wanted to rely upon the discrepancies in the statement to reject the appellant's contention before the authorities by the deponent, the authorities ought to have furnished a copy of the original statement to the deponent. The facts in the matter in hand are totally different. 12. The Ld. advocate for the appellants while drawing our attention to the correspondence on behalf of the appellants addressed to the respondents contended that the situation in Amha Lal's casewas almost similar to the appellants' case. It cannot be disputed that letter dated 20-6-2006, the appellants' counsel had asked for copies of the statements of Shri Hamld. They had also sent reminders in this regard vide letter dated 27-9-2006, 5-10-2006 and 15-3- 2007 and yet the authorities had not answered any one of them. But as already stated above, once it is cl....
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....t in case any authority deals with any adjudication proceedings wants to rely upon any statement of any witness to fix the liability of the party to the proceedings certainly such a person should get an opportunity to cross examine such deponents. Failure in that regard would obviously result in non compliance with the principles of natural justice. However, this rule is not without exception. Whether in a given case, the absence of opportunity to cross examine a witness would result in failure of principles of natural justice or not will depend upon the facts and circumstances of that case, and will have to be decided accordingly. 14. In the case in hand, as already observed, the statement of Shri Hamid has been relied upon for the limited purpose that is in relation to the nature of the goods which were imported by the appellants. Apart from the fact that the contents of the statement were already known to the appellants, even in the reply to the show cause notice filed by the appellants, the same facts were reiterated. Being so, in the facts and circumstances of the case in hand, merely because there was no opportunity of cross examination, can it be said that it has resulted....
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....er in hand in as much as that, the findings arrived at are not borne out from the record. The contention in this regard is that there is failure to consider the ITT report submitted by the appellants along with their reply to the show cause notice and conclusions about the comparison of the contents of the product imported by the appellants with the products by other importers having been arrived at without any supporting material. 18. Referring to letter dated 3-7-08 it was sought to be contended that the appellants had furnished copy of the IIT report in respect of the contents of the goods imported by the appellants along with the reply to the show cause notice and that the said report clearly disclosed that the goods which were imported by the appellants were industrial soap flakes Grade II and not soap noodles. Indeed para 3 of letter dated 3-7-2008 reads thus - "Our clients have informed us that the S.I.F.B. had sent samples to the IIT, Mumbai and therefore copy of test report obtained by our clients from 1FF was submitted along with reply to S.C.N, which confirms that the goods imported by our clients are industrial soap flakes Grade II" 19. Perusal of reply dated 3....
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.... the basis of comparison between the product imported by the appellants and the product imported by other importers, the impugned order clearly refers to opinion received from Dr. Anirudha B. Pandit, UGC Research Scientist, institute of Chemical Technology, University Department of Chemical Technology (UDCT), Nathalal Parikh Marg, Matunga, Mumbai. Further, it also refers to the investigation carried out by the authorities in the matter regarding the modus operandi of the importers including the appellants, Bills of Entry, test report dated 24-3-2005 and reports pertaining to the consignment imported by M/s. Hindustan Lever Limited. As regards the comparison of the consignment imported by M/s. Hindustart Lever Limited, there is a specific reference to the documents recovered from the premises of the office of the appellants themselves which included the Analysis Certificate issued by M/s. Indelab, SDN, BHD Malaysia. In other words, it was after taking into consideration all the materials on record that the adjudicating authority has arrived at a conclusion that - "the similarity of the product can be compared by way of composition certificates, and copies of the corresponding inv....