TaxTMI 
TaxTMI 
2004 (9) TMI 502
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....uch machines and cleared them for Custom Department during the period 1-6-1999 to 18-2-1999. 2. (a) Certain enquiries were launched, on or around 18-7-2001, pursuant to the company having filed BEs dated 31-3-2001, 18-6-2001 for clearance of 210 & 3 & 210 pcs of CD's declared to be containing "Installation Software" for the operation of the machines imported by them. During the enquires made, statements of various persons were recorded and questionnaires sent got answered and taken on record. Based on these enquires, it was alleged in the Show Cause notice. (i) That appellant's company had imported T-36 splicing Machines, manufactured and supplied by M/s. Sumitomo Electric Industries, Japan under two separate consignments and two....
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....ment of Mr. Ajit Pilai, partner of CHA firm, recorded under Section 108 of the Customs Act, 1962 ("the Act") who inter alia stated that M/s. Trinity Electric Syndicate Pvt. Ltd. was importing the machines using the modus operandi of artificially splitting of description and value. 2. The Show Cause Notice also relies upon the statement of various officials of Bharat Sanchar Nigam Limited viz. Mr. K.V. Jacob, Mr. A.L. Ramkrishnan, Vidya Hebber who inter alia stated that the basic operations of splicing machines are pre programmed and no such CDs were shown to have been supplied with these machines. 3. The Show Cause Notice further relies upon the statement of Mr. Shantibrata Chatterjee, Sales Manager of Sumitomo Electric Indu....
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....adequate justification has been furnished in support of the request for cross-examination. Moreover, I find that this case does not rest on solely on the statements of person whose cross-examination was sought and there is in addition independent documentary evidence. It is settled law that the right of cross-examination in such proceedings is not an absolute right and has to be decided on the facts and circumstances of each case [1990 (48) E.L.T. 302 (Tri.), 1993 (64) E.L.T. 31 (Tri.) and 2001 (138) E.L.T. 556 (Tri.). Having regard to the circumstances, I do not find any justification in the request for cross-examination and have, therefore, decided to proceed with the adjudication without permitting cross-examination." (c) Thereaf....
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....he confession of Shri Khambati that the machines were imported with pre-installed software, Shri S. Chatterjee and Shri Abhijit sharma have, in their statement, stated so. In act, Shri Sharma has mentioned that, on Shri Khambati's directions, he attempted to erase the software installed on the machine in order to how that the machines had been imported without software, should the customs want to check this. However, he used, he failed in his attempt." This would indicate that the Commissioner has relied upon the statements of the deponents, after concluding "I do not find any justification in the cross-examination". This is not only serious violation of principal of Natural Justice, which was stressed by the ld. Advocate before us, but ....
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....xamination. Since they will have to make out a statement of Defence, only after the cross-examination is effected. Therefore nothing much can be read into the non-submission of the documents, in this case, which is a case of denial of effective opportunity for production of material by defence. (c) Perusal of Paragraph 90 of the impugned order records... "the claim of M/s. Sumitomo that the hardware and software was supplied separately in the case of Trinity, as per the later shipping instruction does appear quite facile-----"...." Thereafter the Commissioner in Paragraph 99 goes to record as regards conduct of Summitom and absolves them of all liabilities penalties and places the entire burden on the shoulders of the Managing Direc....