2022 (6) TMI 505

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....oms Act, when the impugned consignment was meant for re-export in hard currency, held at customs notified area? 2. Whether the CESTAT is correct in confirming the order of the confiscation of adjudicating authority, by relying on departmental enquiry, in violation of Principles of Natural Justice? 3. Whether the CESTAT is correct in confirming the order of Adjudicating Authority valuing the goods under Rule 8 of the Customs Valuation (Determination of price of imported Goods) Rules, 1998, when the impugned consignment was sought to be re-exported by the appellant? 4. Whether the CESTAT is correct in affirming the finding of adjudicating authority holding the appellant is guilty of "commercial fraud/money laundering scheme" in respect of the impugned consignment, without any such charge either in the show cause notice or its addendum? 5. Whether the CESTAT is correct in affirming the finding of adjudication authority on the levy of penalty when the impugned consignment is neither a restricted nor a prohibited under the EXIM policy or Customs Act? 6. Whether the CESTAT Bench violated the rule of law by hearing the case when the person who had accorded sanctioned as the Comm....

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....r, filed its written submissions before the Commissioner of Customs (EP). 3.2. The respondent/Adjudicating Authority passed the order -in original No.4493/05 dated 30.12.2005, confiscating the goods in question to the value of Rs.15,31,994/- and redeeming the same on payment of Rs.3,82,000/-, besides imposing penalty of Rs.1,00,000/-. While so, one Mr.Madhu Mohan Damodhar in his official capacity as Commissioner of Customs (Seaport-Imports), vide order dated 04.09.2006, accorded sanction for prosecution of the appellant company and its Managing Director, for the offence under Sections 132 & 135(1)(c) of the Customs Act, 1962. Pursuant to the same, on 15.03.2007, the Assistant Commissioner of Customs, Prosecution Unit (Sea) Customs House, Chennai, lodged a complaint against the appellant and its Managing Director, before the learned Additional Chief Metropolitan Mageistration, EOI, Egmore, Chennai and the said complaint was taken on file in C.C.No.161 of 2007. 3.3. In the mean while, the appellant preferred an Appeal No.C/86/2006-DB before the CESTAT, as against the order dated 30.12.2005 passed by the Adjudicating Authority. The said Appeal was ultimately, dismissed by the CESTAT....

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.... against the appellant and the said appeal was ultimately, dismissed on 26.07.2017. Further, the miscellaneous application filed by the appellant seeking to rectify the mistake crept-in in the said order dated 26.07.2017 passed in the appeal, was also dismissed by the CESTAT consisting of the same members, by order dated 26.03.2018. According to the appellant, the orders so passed by the CESTAT consisting of the said member Mr.Madhu Mohan Damodhar, dated 26.07.2017 and 26.03.2018 are in clear violation of rule of law, as there is a reasonable apprehension of bias or likelihood of bias, in deciding the appeal and miscellaneous application. 6. We find some bona fide in the submission of the learned counsel for the appellant. It is a fundamental principle of law that a person should not be a judge in his or her own cause. In common law, this principle has been derived from the Latin maxim - 'nemo debet esse judex in propria sua causa'. A reasonable permutation of this principle is that no judge should adjudicate a dispute which he or she has dealt with in any capacity, other than a purely judicial one. The failure to adhere to this principle creates an apprehension of bias on....

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....ation human probabilities and ordinary course of human conduct." 9. In S. Parthasarathi v. State of A.P. [MANU/SC/0059/1973 : (1974) 3 SCC 459], the Supreme Court has applied the "real likelihood" test and restored the decree of the trial court which invalidated compulsory retirement of the Appellant by way of punishment. It was observed thus: "16. ...We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right-minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not inquire whether he was really prejudiced. If a reasonable man w....