TaxTMI 
TaxTMI 
2019 (7) TMI 345
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....-original dated 24th October 2017 made by the Additional Director General, DRI (Adjudication) confirming the demands made upon the petitioner for customs duty and imposing upon the petitioner penalties under the provisions of Customs Act, 1962 (said Act). In fact, the impugned order dated 24th October 2017 is a common order, which has been impugned in all these petitions. 4] There is no dispute that as against the impugned order dated 24th October 2017, the petitioners have alternate remedy of institution of an appeal to the Customs, Central Excise and Service Tax Appellate Tribunal, in terms of Section 129A of the said Act. This on deposit of 7.5% of the amount demanded where duty or duty and penalty are in dispute, or penalty, where penalty alone is in dispute in terms of Section 129E of the Act. However, it is the case of the petitioners that the impugned order-in-original dated 24th October 2017 was made in violation of principles of natural justice and by ignoring the mandate of Section 138B of the said Act and therefore, this Court should exercise its discretion and entertain these petitions under Article 226 of the Constitution of India without relegating the petitioners ....
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....echnologies vs. The Customs, Excise & Service Taxex Appellate Tribunal (CESTAT), Kolkata and ors. (CEXA No. 6 of 2017) decided on 23rd April 2019. 7] Mr. P.S. Jetly, learned counsel for the respondents, submits that there is no infirmity whatsoever in the impugned orders or the decision making process leading to the impugned orders. He submits that several opportunities were granted to the petitioners, but it is the petitioners who failed to avail the same. He submits that the petitioners were clearly informed that the statements referred to in the Show Cause Notices were to be relied upon by the Adjudicating Authority. He submits that opportunity of cross-examination was also offered to the petitioners. He submits that this is not at all a fit case to bypass the alternate remedy provided under the said Act or to avoid mandatory pre-deposit in terms of Section 129E of the said Act. He relies on Nimbus Communications Limited vs. Commissioner of S.T., Mumbai-IV - 44 STC 578 (Bom) to submit that this Court has already upheld the mandatory pre-deposit conditions for institution of the appeals. For all these reasons, Mr. Jetly submits that these petitions may be dismissed inter alia ....
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....-examine such persons on the appointed dates. The matters were posted on certain dates when, on behalf of the petitioners, adjournments were applied for. On one of the occasions, the Adjudicating Authority was himself not present. Finally, the matters were placed on 24th July 2017, on which date, neither the petitioners nor their advocates appeared before the Adjudicating Authority. 13] The paragraphs 3.1 & 5.0.3 of the impugned order-in-original make reference to the manner in which the matter proceeded in some details. Whilst we do not wish to foreclose any of the the petitioners' contentions on the issue of alleged violation of the provisions under Section 138B of the said Act or the principles of natural justice, at least prima facie, we are satisfied that the complaint of the petitioners is really not that they were afforded no opportunity whatsoever to meet the case against them but it is the case of the petitioners that they were afforded 'no adequate opportunity'. 14] The contention that the petitioners were afforded no adequate opportunity will require in depth examination, which can be effectively undertaken by the Appeal Court rather than this Court. Si....
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....by filing statutory appeal. 16] In Slotco Steel Products Pvt. Ltd. (supra) entirely relies upon J & K Cigarettes Ltd. (supra). There is nothing in the said two decisions which persuades us to take view that the petitioners need not be relegated to the alternate remedy under the said Act. 17] In GTC Industries Ltd. (supra), this Court accepted the minutes of order and directed the Adjudicating Authority not to rely upon or take into account for passing the adjudication order the statements of any witness who is not tendered for cross-examination by the petitioners. Such order, was upheld by the Apex Court in its order dated 3rd January 1995. In the facts of the present case, the complaint is not really about taking into consideration of the statements of witnesses, who were not tendered for cross-examination by the petitioners. In fact, in the present case, the Adjudicating Authority had clearly allowed the petitioner to cross-examine such persons but it is the petitioners, who failed to avail of such opportunity by not remaining present on the crucial date. Accordingly, the decisions in GTC Industries Ltd. (supra) are really not sufficient to conclude that in the peculiar fac....