TaxTMI 
TaxTMI 
2016 (2) TMI 652
X X X X Extracts X X X X
X X X X Extracts X X X X
.... antiquities under Section 24 of the AAT Act under Section 113(d) of the Customs Act, 1962. 760 coins which were declared to be non-antiquities under Section 24 of the AAT Act were not liable to confiscation. (iii) Absolute confiscation of Indian currency amounting to Rs. 20,035/- under Section 113(d) and (i) of the Customs Act, 1962. (iv) Confiscation of packages under Section 118(b) of the Customs Act, 1962 with an option to redeem the same on payment of fine of Rs. 100/-. (v) Imposition of penalty of Rs. 50 lakhs under Section 114(i) of the Customs Act, 1962 on Dr. V.J.A. Flynn. (However penalty was not imposed on Mr. Sadasiwan Mudaliar and Mr. SS Rastogi as they had died). 2. The facts of the case, briefly stated are as under:- On 21.06.1994 Dr. V.J.A. Flynn, the appellant, was intercepted at the Indira Gandhi International airport when he was bound for Hong Kong by Air India flight No. AI3126. Examination of his baggage resulted in the recovery of the goods mentioned at serial No.(i) of the order mentioned above which he had not declared as per the requirement of Section 77 of Customs Act, 1962. Holding them to be antiques on the basis of the opinion ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) There was no basis to confiscate 34,149 coins seized from Pamposh Enclave, New Delhi as possession of antiques is not an offence and those were not liable to confiscation under Section 113(d) of the Customs Act, 1962 either as it cannot be said that the said coins were attempted to be exported or brought within the limit of any customs area for the purpose of being exported. Ld. advocate for the appellant cited a few judgements in support of his contention including CCE, Nagpur Vs. Ballarpur Industries [2007 (215) ELT 489 (SC)]. In view of the aforesaid, the Ld. advocate pleaded that the matter should be remanded to the adjudicating authority for de novo adjudication after allowing cross-examination of the aforesaid persons. 4. Per contra, ld. advocate for Revenue drew our attention to the Delhi High Court judgement dated 10.04.2008 in Writ Petition filed by the appellant seeking commencement of the adjudicatory proceedings and a direction to Revenue for providing all documents to the appellant. In the light of the above order, the ld. advocate took us through the documents filed in the appeal as well as the impugned order to show that documents requested for by the appellant ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ement of Delhi High Court judgement dated 29.05.2013 in the case of W.P.(C) No.402/2013 and C.M. No.804/2013 in the case of Shahid Balwa Vs. Directorate of Enforcement to support the proposition that any deficiency in observance of the principles of natural Justice can be rectified by CESTAT also. 5. We have considered the contentions of both sides. As regards the contention of ld. advocate for the appellant that the relied upon documents are not provided to the appellant, we find from the perusal of the records that the documents requested by the appellant were indeed provided vide letters dated 20.02.2009 and 12.03.2009 in response to the appellants request. Further, this ground has not been taken by the appellant in its appeal. Thus, we do not find this contention sustainable. 6. Coming to the crucial aspect of the need for cross-examination of Mr. Hari Manjhi, ld. advocate for the appellant stated that his cross-examination is absolutely crucial because he needs to be questioned on several aspects including (i) whether he was duly authorised by D.G., ASI as required under Section 24 of AAT Act, (ii) the methodology which was adopted by him for coming to a finding that the im....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing." Ld. advocate for Revenue stressed that this judgement supports his contention that in the given circumstances and having regarding to the fact that as per Section 24 of the AAT Act, the opinion of Shri Manjhi is final and his cross-examination would not derogate from the finality of his opinion not permitting his cross-examination has not caused prejudice to the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on any evidence which was not disclosed in the Show Cause Notice. The Adjudication Authority, in accordance with the Provisions of Section 9D(2) of the Central Excise Act, 1944 must examine the witnesses whose statements have been relied upon by the Department and thereafter must permit their cross-examination by the Appellant, if requested by them. The appeal and the stay application stand disposed of as above. We have given this point considerable thought. There is no doubt that there can be a situation where absence of cross-examination of an expert may not cause any prejudice to the litigant and in such a case not allowing cross-examination would not be fatal to the proceedings as held by the Supreme Court in the case of Dharampal Satyapal Vs. CCE (supra). Thus, the point to be determined is whether not allowing cross-examination of Mr. Manjhi can be potentially prejudicial to the appellant. Mr. Manjhi's report is the most crucial to conclude that the impugned goods were antiquities. Even if his report is final as per Section 24 of the AAT Act, he can still be cross-examined on several grounds just for an example, he can be asked to produce the evidence that he was authorised ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se nothing is predicated upon his opinion in the impugned order. Thus, no prejudice would be caused to the appellant if his cross-examination is not permitted. 8. At this juncture, it is pertinent to mention that as far as the seizure at the airport is concerned, even if for the sake of argument, the coins did not turn out to be antiques, the confiscation under section 113 (i) of the Customs Act, 1962 will be sustainable because the goods seized at the airport were not declared by the appellant as required under section 77 ibid. 9. As regards the contention of the ld. advocate for the appellant that the adjudicating authority relied upon documents which are not part of the Show Cause Notice, particularly the report of Mr. Manjhi, we find that Delhi High Court in the case of the appellant himself vide order reported at 2003 (159) ELT 92 (Delhi) held that the Show Cause Notice issued on the basis of the opinion of Mr. Dharamvir Sharma was valid and that the report of the Director, ASI under Section 24 of AAT Act certifying whether impugned goods are antique or not is not a pre-requisite for issuing Show Cause Notice under section 124 of the Customs act 1962. Further vide order date....