2018 (6) TMI 1026

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... and 112(b) of the Customs Act, 1962. Learned Advocate appearing for the petitioner has submitted that, although the impugned order is appealable, the writ petition is maintainable inasmuch as, the impugned order is vitiated by breach of the principles of natural justice and that, the adjudicating authority has travelled beyond jurisdiction in imposing the penalty specified. He has submitted that, the petitioner had requested for cross-examination of the accused nos. 1 and 2 in the proceedings. Such opportunity was denied to the petitioner. The petitioner was the accused no. 3. He has referred to the impugned order and has submitted that, the petitioner was absent on May 1, 2017. However, such hearing was fixed for the purpose of allowing ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... disjunctive. Both cannot be applied at the same time. At best, the adjudicating authority could have invoked Section 112(b)(ii) as against the petitioner. Then assuming that to be so, the adjudicating authority could not have imposed a penalty of Rs. 1 Crore against the petitioner. The adjudicating authority has, therefore, acted beyond jurisdiction vested upon it by law in doing so. He has sought quashing of the impugned order. On the interpretation of Sections 112(a) and (b) of the Customs Act, 1962, learned Advocate for the petitioners has relied upon a judgment and order dated April 28, 2016 passed in W.P. No. 279 of 2016 (Gopal Saha v. The Union of India & Anr.) as also the Order dated July17, 2017 passed in W.P. No. 377 of 2017 (Sri....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ppeal carried therefrom, on February 23, 2017. According to him, Gopal Saha (supra) does not lay down the correct law on the interpretation of Section 112 of the Customs Act, 1962. Referring to Secton112 of the Customs Act, 1962, learned Advocate appearing for the respondents has relied upon Circular No. 34/2013- Cus., dated September 4, 2013 and Circular No. 39(RE-2010)/2009-14 dated August 19, 2011. He has also relied upon 2011 Volume 2 Supreme Court Cases page 74 (Commissioner of Customs (Preventive), Mumbai v. M. Ambalal and Company). Two issues have arisen for consideration in the present writ petition. Such issues are as follows:- (i) Whether the impugned order stands vitiated by breach of principles of natural justice? (ii) Whe....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....to question the creditability of the witness, if the occasion so arises and to illicit the facts of the case from such witness. It allows the adjudicating authority to form an opinion with regard to the facts placed before it. In the present case, the petitioner had received a show-cause notice dated August 14, 2015. The petitioner had replied thereto on October 1, 2015. In the course of the proceedings, the petitioner before the adjudicating authority had, on March 29, 2017 requested for an opportunity to cross-examine to other noticees in the proceeding. Such prayer was repeated by a letter dated July 10, 2017. It appears from the impugned order that, a hearing was scheduled on May 1, 2017 when the petitioner did not appear. The two noti....