TaxTMI 
TaxTMI 
2021 (8) TMI 831
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....iz., C.Maheswaran, Damodharan and Abdul Azeez within a stipulated time and consequently, set aside the order passed by the first appellant in Order-in- Appeal dated 29.09.2016. The learned Writ Court also fixed a time frame within which such exercise has to be completed. Further, the Court held that it has not expressed any view with regard to the merits of the case and the authorities were granted liberty to pass orders in accordance with law. The correctness of such order and direction issued in the writ petition is challenged before us in this appeal. 4.We have elaborately heard Mr.V.Sundareswaran, learned Senior Standing Counsel for the appellants and Mr.S.Murugappan, learned counsel for the respondent-writ petitioner. 5.The Directorate of Revenue Intelligence (DRI) developed specific intelligence that M/s.Surana Corporation Limited, Chennai (hereinafter referred to as "M/s.SCL") of which, the respondent-writ petitioner was the Managing Director, have been procuring gold bars of foreign origin, which were smuggled into India and selling the same to various persons without proper invoices/bills. This information led to an investigation, which culminated in issuance of a show c....
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....n 112 of the 1962 Act. 6.The show cause notice has elaborately set out the entire facts and the statements, which were recorded from the various persons including the noticees during the course of investigation. The respondent-writ petitioner submitted his reply dated 22.09.2015 and in paragraph 31 of the reply, the respondent stated that he wants to be heard in person before the case is decided and would also like to cross examine Damodharan, C.Maheswaran and Abdul Azeez. The second appellant, the adjudicating authority, fixed personal hearing on 22.09.2015 on which date, the respondent had submitted written submissions through his Authorised Representative in which, the request for cross examination was reiterated. The said request was disposed of by a communication received by the counsel for the respondent on 07.10.2015, stating that the respondent has not quoted any specific reason in justification of the request for cross examination. 7.Relying upon the decision of the Hon'ble Supreme Court in Kanungo & Co. vs. Collector of Customs [1983 (13) ELT 1486 (SC)], the second appellant has stated that cross examination of witnesses is not mandatory. Therefore, the respondent w....
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....d of three months should be computed from 21.10.2016. Thus, if an appeal had been preferred by the appellant by 19.01.2017, it would have been within time. However, the respondent chose to file a writ petition challenging the Order-in-Appeal passed by the first appellant on 27th February, 2017. On going by the said date, the writ petition could have been rejected on the ground that even though the petition is under Article 226 of the Constitution of India, the Court will be slow to ignore the statutory period of limitation prescribed under the Act more particularly, in taxation statutes. 12.Be that as it may, the writ petition was filed solely on the ground that the request made by the respondent for cross examination of those three persons could not have been rejected. Further, it was contended that a separate order, though sought for while rejecting the request for cross examination, was not passed. The respondent referred to Section 138B of the 1962 Act and submitted that sub-section (2) of Section 138 is applicable to the proceedings before the authorities and therefore, cross examination should have been permitted. 13.The respondent relied upon the decision of the High Court....
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....e smuggled gold and the onus of proof was on the respondent, which he has failed to discharge. Further, in a voluntary statement given by the respondent under Section 108 of the 1962 Act, dated 15.12.2014, the respondent admitted the smuggled nature of goods. 17.The appellants relied upon the decision of the Hon'ble Supreme Court in Surjeet Singh Chhabra vs. Union of India [1997 (89) ELT 646] for the proposition that the Customs Officials are not police officers. The confession, though retracted, is an admission and binds the respondent. So there is no need to call the panch witnesses for examination and cross examination. Further, by referring to the decision in Kanungo & Co. (supra), it was submitted that merely because cross examination was not done, it would not violate the principles of natural justice. For the same proposition, reliance was placed on the decision of the Hon'ble Supreme Court in Union of India vs. GTC Industries Ltd., [2003 (153) ELT 244] (SC); Harinder Pal Singh Shergill vs. Commissioner [2010 (259) ELT A19 (SC)]; Sanjy Shah vs. Commissioner [2011 (268) ELT A109 (SC)]; and the decision of this Court in M/s.Veetrag Enterprises vs. Commissioner of Cust....
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.... circumstances of each case. 20.Bearing this legal principle, if we examine the case on hand, we find that the first request made for cross examination, in the representation dated 22.09.2015, appears to be a very faint plea, because the said representation is a reply to the show cause notice on merits. Furthermore, none of those three persons, who were named in the said reply, have retracted their voluntary statements given under Section 108 of the 1962 Act to the authorities. Furthermore, all those three persons were the co-noticees along with the respondent in the show cause notice, which ultimately led to the passing of the penalty order dated 29.04.2016. Those three persons have not questioned the order passed by the second appellant dated 29.04.2016 and all the findings of guilt recorded by the second appellant against those three persons stand concluded. In such circumstances, the plea raised by the respondent to cross examine those three persons is obviously a plea to protract and delay the proceedings. 21.On perusal of the Order-in-Original dated 29.04.2016, we find that the second appellant had elaborately considered the request for cross examination and has recorded co....
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.... to M/s.SCL on many occasions and the respondent in his statement dated 15.12.2014, has stated that procurement of gold from various countries reduced from 2013, after Central Bureau of Investigation caused investigation. The decision in the case of Andaman Timber Industries (supra), relied on by the respondent is clearly distinguishable on facts. 22.As pointed out earlier, the process of adjudication is over and the order dated 29.04.2016 has been passed by the second appellant and it has become final as against nine others, as it is the respondent alone, who had filed an appeal under Section 129(A) of the 1962 Act before the first appellant. The said appeal has also been dismissed on merits and on doing so, the first appellant has also confirmed the order passed by the second appellant upholding the decision to deny cross examination. 23.The question of maintainability of the writ petition, though specifically raised by the appellant-Revenue before the learned Writ Court, has not been considered. 24.As mentioned above, had the appellant filed the appeal before the Tribunal on the date when he filed the writ petition, i.e., on 27th February, 2017, it would have been time barred....