TaxTMI 
TaxTMI 
2014 (12) TMI 228
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....on 112(a) of the Customs Act and also proposing to deny duty exemption contained in Notification No. 55/2003-Cus., dated 1-4-2003 in respect of the subject goods and to assess the goods on merit rate of duty and also demanding interest thereon. The notice also proposed to impose penalties on Shri D.M. Pradhan, Chartered Engineer under Section 112(a), on Shri Rakesh Handa, of the CHA firm M/s. Shobha Prompt Services Pvt. Ltd., M/s. Liebherr Export AG India Office and Shri Pulok Gupta, Manager, Shri Mani Shankar Singh, Asstt. Chief Engineer of M/s. Patel Engineering Ltd. and Shri B. K. Chakraborty, Vice-President of M/s. Patel Engineering Ltd. under Section 112(a) of the Customs Act. The case was adjudicated by the impugned order. The goods were confiscated under Sections 111(d) and (m) of the Customs Act, 1962 with an option to redeem the same on payment of fine of Rs. 40 lakhs. The benefit of Notification No. 55/2003-Cus. was denied and the goods were ordered to be assessed on merits and differential duty was demanded under Section 28 along with interest thereon under Section 28AB. A personal penalty of Rs. 10 lakhs each was imposed on the appellant firm M/s. Patel Engineering Ltd.....
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....ed. Mr. Jetly submits that the arguments before this Court are purely technical. There is no breach of the principles of natural justice considering that both the authorities have relied on the undisputed factual position. In these circumstances and when the expert panel comprised of one of the officers of the assessee/Appellant before us, then, all the more there is no prejudice caused. The attempt was to get over and escape the consequences of a patently illegal and wrongful act. The contravention of law was deliberate inasmuch as the parties desire to claim benefit of a scheme under which there were certain conditions imposed. These conditions were not fulfilled by the Appellant, and hence, the benefit thereof was denied. In these circumstances, the order under challenge does not require any interference in this Court's appellate jurisdiction. The Appeal, therefore, must be dismissed. 6. We have, with the assistance of Mr. Kantawala and Mr. Jetly, perused the order under challenge. We have noted the factual position emerging from the record. We have carefully perused the entire paper-book and the decisions brought to our notice. 7. At the out set, the decision of the....
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....case (supra). However, it has been thereafter consistently held that this rule is not inflexible. No technical breach can be advantageous, provided the prejudice because of such breach is not established. The attention of the Division Bench was not drawn to further judgments of the Hon'ble Supreme Court which are equally binding. That apart, the Division Bench Judgment can be distinguished by pointing out that every time such a breach is alleged, it does not mean that the Court will not insist on the proof which we have emphasized as above. Further, it can be distinguished because in the peculiar facts and circumstances of that case serious consequences on the petitioner/assessee would have followed if classification was not done as urged but under different subheading may be of the same Chapter. That would have economic liability and equally on the aspect of any exemption from payment of duty. The consequences being so serious that the Division Bench quashed and set aside the proceedings and directed that the matter should be determined afresh by the Adjudicating Authority. 11. Therefore, this judgment, apart from the above is distinguishable. 12. The above position ap....
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.... of two tower cranes under EPCG license claiming benefit of Notification No. 055 of 2003, dated 1st April 2003. As per the declaration, the tower cranes were shown as of 1995 make and of German Origin whereas the port of loading was declared as Belgium and as per the licence bills it was permitted to import two second-hand Liebherr Tower Cranes. The importers submitted a Chartered Engineer's certificate issued by one Shri D.M. Pradhan of Mumbai. As per the certificate, the date of inspection was 1-1-2004 and both the-cranes were subjected to regular maintenance, they were furbished with new moving parts and there was no major repair work done and both were in good condition. The examination of the goods revealed lot of discrepancies and which were put across to the assessee. Thereafter, the Assistant Chief Engineer of the assessee was called and goods were shown to him and his statements were recorded on 1-1-2004 under Section 108 of the Customs Act, 1962 wherein he admitted that certain parts might be of 1988 origin but he could give a clear cut opinion later-on after further examination. There was a contradiction in the Chartered Engineer's Certificate and contents of bill ....
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.... are vitiated for non-compliance with the principles of natural justice. 18. Once we have found that they are not so vitiated and these are the only questions projected as substantial questions of law, then we have no alternative but to dismiss this Appeal. It is, accordingly, dismissed. No costs. 19. Before parting, we would like to invite the attention of all the parties concerned to the pertinent observations of the Hon'ble Supreme Court in the case of Canara Bank and Ors. v. Shri Debasis Das and Ors, reported in (2003) 4 SCC 557 : AIR 2003 SC 2041 on the content of the principles of natural justice, their compliance not only in administrative but quasi-judicial matters and element of prejudice that is required to be shown, established and proved. The Hon'ble Supreme Court in the SCC report held thus :- 10. It is to be further noted that in the appeal before the Appellate Authority findings of the inquiry officer were challenged and, therefore, the question of any prejudice does not arise. Since the employee had the opportunity to meet the stand of the Bank, it was to his advantage, and opportunity for personal hearing was also granted, though Regulation 6(18) ....
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....portant principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414 : 14 CBNS 180 : (1861-73) All ER Rep Ext 1554] the principle was thus stated : (ER p. 420) "Even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?' " Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond. 16. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a jud....
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....rly in continental countries, the form "audietur et altera pars" is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely "qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum fecerit" that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right" [see Boswel's case [(1605) 6 Co Rep 48b : 77 ER 326] (Co Rep at p. 52-a)] or in other words, as it is now expressed, "justice should not only be done but should manifestly be seen to be done". Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon (sic open). All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 20. Prior to this decision in the case of Aligarh Muslim University and Ors. v. Mansoor Ali Khan, a two Judge Bench of the Hon'ble Supreme Court in the decision reported in (2000) 7 SCC 529 held as under: - 21. As pointed recen....
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....on of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31) "[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth." Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma [(1996) 3 364 : 1996 SCC (L&S) 717]. In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] 21. Thus, the consistent view is that may be....