2009 (7) TMI 70

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.... the following: The 1^st petitioner Company imported newsprint from South Korea in May, 1999. Customs duty at the rate of 5.5.% was paid and the goods were cleared on executing a bond for payment of any balance amount found due. The Customs Officer concerned took samples of the newsprint imported for chemical analysis to find out whether the paper imported answers the definition of newsprint. On analysis, it was found that the paper imported contained wood fibres below 65% and therefore, the duty payable was at the rate of 67.3%. The 1^st petitioner was served with Ext.P2 notice informing about the results of the Chemical Analysis. The 1^st petitioner replied by Ext.P3 dated 10.7.2000 calling for the details of the test results. The Assi....

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....n and granted stay of Ext.P9 on 30.5.2002 for one month. Later, on 28.6.2008, the stay was extended until further orders. When the matter came up for final hearing, the learned Single Judge felt that substantial questions arise for decision and therefore, referred the matter to the Division Bench. 4. We heard the learned senior counsel Sri. Pathros Matthai for the petitioners and Sri. John Varghese, learned counsel for the Revenue. Though the validity of the definition of 'Newsprint' was challenged in the writ petition, that point was not argued before us. The learned senior counsel Sri. Pathros Matthai took us through Exts.P7 and P8, wherein there was a specific request made to give a chance to cross-examine the Officers concerned. Lear....

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....ficer to give and confers a corresponding right on the assessee to be afforded, a reasonable opportunity 'to prove the correctness or completeness of such return.' Now, obviously 'to prove' means to establish the correctness or completeness of the return by any mode permissible under law. The usual mode recognised by law for proving fact is by production of evidence and evidence includes oral evidence of witnesses. The opportunity to prove the correctness or completeness of the return would, therefore, necessarily carry with it the right to examine witnesses and that would include equally the right to cross-examine witnesses examined by the Sales Tax Officer. Here, in the present case, the return filed by the assessee appeared to the Sales ....

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.... of the Revenue that the assessee in both cases applied to the Sales Tax Officer for summoning Hazi Usmankutty and other wholesale dealers for cross-examination, but his application was turned down by the Sales Tax Officer. This act of the Sales Tax Officer in refusing to summon Hazi Usmankutty and other wholesale dealers for cross-examination by the assessee clearly constituted infraction of the right conferred on the assessee by the second part of the proviso and that vitiated the orders of assessment made against  the assessee." (emphasis supplied) 5. In support of the submission that the petitioners are entitled to approach this Court directly, when the order impugned has been passed in violation of principles of natural justice....

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....e also. Therefore, the main grievance canvassed by the petitioners could have been redressed by filing the statutory appeal itself. So, the learned counsel prayed that the Original Petition may be dismissed. 8. We considered the rival submissions made at the Bar and also the decisions cited before us. Since the Writ Petition was pending before this Court for the last seven years, we are inclined to hear the Writ Petition on merits. Chapter 48 of the Schedule of the Customs Tariff Act deals with paper and paperboard; articles of paper pulp, of paper or of paperboard. In the said Chapter, newsprint is defined as follows: "Newsprint means uncoated paper of a kind used for the printing of newspapers, of which not less than 65% by weight o....

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....ok the samples. But, the chemical analysis report, which alone decided the fate of the case, is a vital document against the petitioners. Therefore, we feel that they should have been given a chance to cross-examine the Chemist, who did the analysis. For denying that opportunity, we feel that the impugned order is vitiated, especially, in view of the enormity of the prejudice caused to them. 10. In the result, Ext.P9 is quashed and the matter is remitted to the 1st respondent for fresh determination in accordance with law. The records relating to taking of the samples shall be made available to the petitioners for their perusal. If the Officer, who did the analysis, is not available, his successor-in office along with the records concern....