TaxTMI 
TaxTMI 
2024 (5) TMI 210
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....re for learned advocate Ms. Khyati Chugh, learned advocate Mr. Arjun Joshi, learned advocate Mr. Dhaval Shah and learned advocate Mr. Malay Dange for the petitioners of the respective petitions and learned advocate Mr. Siddharth Dave for respondent No. 2. 2. These group of petitions are filed challenging the Order-in-original dated 29.11.2021 passed by the respondent No. 2-Principal Commissioner of Customs, Ahmedabad as the petitioners are co-noticee, these petitions are heard analogously and are being disposed of by this common judgement and order. 3. Issue Rule returnable forthwith. Learned advocates for the respective respondents waive service of notice of rule. 4. For the sake of convenience, Special Civil Application No. 5090 of 2022 is treated as the lead matter. 5. The brief facts of the case of the petitioner of Special Civil Application No. 5090 of 2022 are as under: 5.1 The petitioner-Shri Promodgiri Premgiri Goswami and his brother Dilipgiri Premgiri Goswami started a proprietary business of silver in the name of M/s. Darshan Silver in the year 1994-95. The Proprietary firm was thereafter converted into partnership firm in the year 2003-04 and partnership ....
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....n to him by passenger named Shri Lokesh Sharma at Aerobridge of Bay No. 32 and he was supposed to handover the said gold bars to Shri Rutugna Trivedi outside the Airport terminal. 5.5 Shri Jigneshbhai Savaliya also informed that Shri Lokesh Sharma exited the Airport Terminal and upon instructions of the Officers of AIU, Shri Jignesh Savaliya called Shri Lokesh Sharma at Gate No. 5. Upon physical search of Shri Lokesh Sharma and examination of his baggage was also carried out but nothing incriminating was found. 5.6 It appears from the record that during the checking of the black coloured trolley bag carried by Shri Lokesh Sharma, the business card of Shri Rutugna Trivedi was found. In the sate of Shri Lokesh Sharma it is recorded that nine brown coloured packets containing gold bars were handed over to him in the duty free area of Dubai Airport by Smt Hina Rutugna Trivedi, wife of Shri Rutugna Trivedi. 5.7 The Customs Officers thereafter carried out searches at the residential and office/business premises of Shri Jignesh Savaliya, Shri Rutugna Trivedi, Shri Lokesh Sharma, M/s. Akhandjyot Eclat Pvt. Ltd and M/s. Akhandjyot Jewels LLP. 5.8 During the search of residential....
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.... to the show cause notice on 14.03.2020 contending that the statement recorded on 24.09.2019 and 26.09.2019 were under coercion and threat of arrest. 5.16 Personal hearing on the show cause notice was scheduled on 17.06.2021 and advocate for the petitioner requested for cross-examination of Ms. Nita Parmar and Mr. Rutugna Trivedi on the ground that the entire evidence case has been booked on the basis of the statements of Ms. Nita Parmar and Mr. Rutugna Trivedi apart from the documents seized from premises and the copy fo the same was not served upon the petitioner. 5.17 Thereafter, the personal hearing was re-scheduled on 12.10.2021 and the learned advocate for the petitioner reiterated request for cross examination of Ms. Nita Parmar and Mr. Rutugna Trivedi as well as the requested to supply relied upon documents (RUD) and letter was also filed on the same day specifying documents which are relied on in the show cause notice but copies were not supplied or provided to the petitioner. 5.18 The petitioner thereafter by another letter dated 30.11.2021 reiterated the request to provide certain relied upon documents and requested to provide opportunity of cross examination of....
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....r. Mihir Joshi with learned advocate Mr. Hardik Modh for the petitioner submitted that the petitioner has challenged the Order-in-original dated 29.11.2021 passed by the respondent No. 2 imposing penalty on the petitioner without availing the alternative efficacious remedy on the principal ground that the same is in breach of the principle of natural justice as the respondent No. 2 did not provide an opportunity to cross-examine the witnesses and co-noticees as requested by the petitioner from time-to-time under Article 226 of the Constitution of India. Reliance was placed on the decision of the Hon'ble Apex Court in case of Radhakrishna Industries Vs. State of Himachal Pradesh reported in (2021) 6 SCC 771. 7. Learned Senior Advocate Mr. Joshi further submitted that the respondent No. 2 also did not provide the relied upon documents(RUD) to the petitioner in spite of requesting the same from time-to-time by various communications after the show-cause notice was issued by the respondent No. 2. 8. It was submitted that the show-cause notice was issued on 24.12.2019 wherein, the reference was made to the documents seized from the premises of co-noticee Ms. Nita Parmar. It was po....
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....ocate Mr. Joshi referred to and relied upon the following decisions: • Commissioner of Central Excise & Customs vs. Chandan Steel Ltd reported in 2009 (238) E.L.T. 716 (Guj.); • Kothari Filaments vs. Commissioner of Cus. (port) Kolkata, reported in 2009 (233) E.L.T. 289 (S.C.); • Tushar Thakkar vs. Union of India reported in 1980 (4) SCC 499; • Rajputana Stainless Ltd vs. Union of India reported in 2021 (12) TMI 180. 12. It was further submitted that no opportunity for cross-examination was granted by the respondent No. 2 in spite of the request was made for cross-examining of co-noticees Ms. Nita Parmar and Ms. Rutugna Trivedi though the data recovered from Ms. Nita Parmar and statements of both the persons were relied upon for the purpose of implicating the petitioner. It was therefore submitted that there was a clear breach of principles of natural justice on the part of respondent No. 2. 13. Learned Senior Advocate Mr. Joshi referred to the show-cause notice dated 24.12.2019 and reply dated 14.03.2021 of the petitioner seeking cross-examination and further request by letter dated 17.06.2021. It was also submitted that du....
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....Ltd (GNFC) vs. Union of India reported in 2020 (1) TMI 1204; • Basudev Garg vs. Commissioner of Customs reported in 2017 (48) STR 427 (Del); • Shree Salasarji Metal Industries vs. Union of India reported in 2018 (9) TMI 1980. 16. It was therefore submitted that on the grounds of opportunity of cross-examination as well as breach of principle of natural justice, the impugned order is liable to be quashed and set aside. 17. On the other hand, learned advocate Mr. Siddharth Dave appearing for respondent No. 2 submitted that the petitioners herein are only the co-noticee out of total 36 co-noticee against whom adjudication order is passed. It was therefore submitted that the alternative efficacious remedy to challenge the impugned Order-in-original dated 29.11.2021 is before the Customs Excise and Service Tax Tribunal under the provision of section 129A of the Customs Act, 1962. 18. It was submitted that while issuing the notice on 02.05.2022, this Court has reserved the opportunity for the respondent to raise the preliminary objection as regards the maintainability of this petition. It was submitted that the petitioner has alternative remedy under se....
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....Mahaveer Foods & Beverages vs. The Principal Commissioner of GST & Central Excise, Chennai, The Head Central Food Technological Research Institute, Mysuru reported in 2021 (5) TMI 331 (Madras High Court); • M/s. Dheeraj Shrivastava vs. State of M.P. and ors reported in 2019 (9) TMI 392 (M.P. High Court); • M/s. Prodair Air Products India Private Limited vs. The Deputy Commissioner of State Tax reported in 2022 (1) TMI 255 (Kerala High Court); • M/s. M.A. Babu, the Deputy Chief Engineer Kerala State Electricity Board Limited and ors reported in 2018 (12) TMI 560 Kerala High Court; • M/s. Falcon Retreat Private Limited vs. The Additional Commissioner of Income Tax in Writ Petition No. 529 of 2022, High Court of Bombay at Goa; • Braham Prakash vs. Government of NCT at Delhi and anr in W.P.(C) 15947/2022 & CM Appl 49690/2022 Delhi High Court; • Delhi Development Authority Vs. Pushpa Wanti & Ors in LPA 314/2021 and CM Appeal No. 30501/2021 Delhi High Court; • M/s. Subhash Chand Mukesh Chand vs. State of Rajasthan in Civil Writ Petition No. 1017/2022 in Civil Writ Petition No. 1017/2022 Rajasthan H....
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.... 2nd Summons : Thereafter summons dated 28.08.2019 was delivered at his residential address at Rajkot which was received by his wife in person on 28.08.2019, and while receiving the summons she mentioned that there was an appointment at Lilawati Hospital in Mumbai and he will come on 05.09.2019. The summons dated 30.08.2019 was also not responded to by the person. 3rd Summons : Summons was further issued to Shri Pramodgiri Premgiri Goswami on 06.09.2019 to remain present on 09.09.2019 and in response to that, the Advocate on behalf of Shri Pramodgiri Premgiri Goswami through individual email informed that on account of nonavailability of lawyer and on account of prior engagement of his client, it would be difficult for him to appear on the given dates of 09.09.2019. He also requested for another date in the month of September. Further, in response to summons dated 06.09.2019, Shri Pramodgiri Premgiri Goswami forwarded letter dated 09.09.2019 through email dated 09.09.2019 requesting for a new date on 12.09.2019 citing reasons of family function. 4th Summons : Accordingly, Summons dated 09.09.2019 was issued directing him to remain present before the investiga....
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....d by the petitioner without any basis, the petition should not be entertained by this Court in view of the alternative efficacious remedy available to the petitioner. 26. It was submitted by learned advocate Mr. Dave that the petitioner was well aware with the facts and he has no case to defend since he has already violated the provisions of the Customs Act, 1962 by smuggling huge quantity of gold into India and thereby causing huge revenue loss to the government exchequer the adjudicating authority having provided ample opportunity to the petitioner to place the defense but the petitioner failed to produce any evidence in support of the charges levelled in the show-cause notice and therefore, instead of making grievance on technicalities of breach of principle of natural justice, the petitioner is liable to raise all the contentions before the Tribunal. 27. Reference was also made by learned advocate Mr. Dave upon the modus operandi adopted by the petitioner for smuggling a huge quantity of gold into India. It was submitted that in the impugned order-in-original, respondent No. 2 has discussed the entire facts and evidence on record and the petitioner is only making hue and ....
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....he respondent No. 2. Learned advocate Mr. Dave on merits, referred to and relied upon various statements recorded during the investigation referred to in the impugned order to submit that the respondent-authority has considered all the material on record as well as the submissions made on behalf of the petitioners while passing the impugned order which may be challenged by the petitioners by preferring the appeal before the CESTAT. 30. Learned advocate Mr. Dave regarding contention raised on behalf of the petitioner for not providing opportunity of cross-examination, referred to and relied upon the following averments made in para 16.7 of the affidavit-in-reply filed on behalf of the respondent which reads as under: "16.7 As regard to Para 4.16 regarding request to provide certain relied upon documents are concerned, it is to submit that the Counsel for the petitioner had raised a plea for supply of certain relied upon documents vide his letter dated 12.10.2021. Though all the relied upon documents had been supplied to the petitioner along with the Show Cause Notice itself, the Counsel was informed to get the documents collected from Superintendent AIU and also the cont....
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.... to various courts including High Court for giving them specific directions to appear and assist the department in the said smuggling racket. Afterwards also, all of these accused were squarely failed to co-operate the department. They completely knew the stipulated time factors which are to be followed by the respondent department with reference to present case. The department also emphasizes here the provisions of Section 28(9) of the Customs Act, 1962 which stipulates as under; Section 28(9) The proper officer shall determine the amount of duty or interest under sub-section (8), {a} within six months from the date of notice where it is possible to do so in respect of cases falling under clause {a) of sub-section (1); (6) within one year from the date of notice where it is possible to do so in respect of cases falling under sub-section (4). [Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under sub-section (8), exte....
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.... for the Noticee appeared for personal hearing on 26.10.2021 wherein he requested for cross-examination Ms. Divya Kishor Bhundia Counsel for the Noticee appeared for personal hearing on 26.10.2021 and sought for an adjournment. In view of the request for adjournment made by the Counsel of the Noticee personal hearing was scheduled at 2.11.2021 at 12.00 hrs. However, none appeared on the scheduled date and time. Smt. Hina Rutugna Trivedi Personal hearing was held on 26.10.2021 which was further continued on 01.11.2021 wherein Counsel for the noticee requested for cross examination Shri Dharmagna Arvindkumar Trivedi The personal hearing scheduled on 27.10.2021 was attended by his Counsel and he requested cross examination Shri Bhargav Kanubhai Tanti Counsel for the Noticee appeared for personal hearing on 26.10.2021 and sought for copies of relied upon documents. Shri Beerendra Singh Yadav The personal hearing scheduled on 27.10.2021 was attended by Shri Uday Joshi, Advocate and he requested cross examination. Shri Mukeshkumar Bhaishankarbhai Trivedi The personal hearing scheduled on 27.10.2021 was attended by Shri Uday Joshi, Advocate and he reque....
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....of natural] justice was not followed by the respondent department during the adjudication proceedings. However, in a nutshell, it is further clarified that almost every documents which were actually relied upon by the respondent department were provided to the petitioner and the documents, which were just casual in nature which are mentioned by passing reference in the grounds of subject Show Cause Notices for narration of facts and withdrawn under respective Panchnama and Statements but not included in the Annexure to the Show Cause Notice, were made available for inspection to the Petitioner. Therefore, apart from the above submissions, the department submits that the onus was also on the petitioner to prove that non-supply of documents has prejudiced him and affected his right to make an effective representation. In such a case, the petitioner's plea of non-supply of document has to be supported by prejudice caused to him in making an effective representation. It would also be pertinent to note the observations of the Supreme Court in State of T.N. v. Abdullah Kadher Batcha: (2009) 1 SCC 333, to the following effect: "7, The court has a duty to see....
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....hawani Versus Union of India, as reported at 1996 (83) E.L.T. 258 (8.C.),Hon'ble Supreme Court of India had held that : *Evidence - Statement of co-accused whether usable without other corroborative evidence - Attempt to export foreign exchange out of India - Carrier naming Shri Subhash Dudani who has given such foreign exchange to him for delivery at Hong Kong - Statement of Shri Dudani under Section 108 of the Customs Act, 1962 named Shri Sukhawani who has given the foreign exchange to him - Statement of co-accused (Shri Dudani) can be used as a substantive evidence connecting the petitioner with contravention of illegal export of foreign exchange - Section 30 of the Evidence Act - Section 161 of the Criminal Procedure Code, 1973." (ii) In another case of Shri K.I. Pavunny Versus Assistant Collector, Central Excise Cllectorate, Cochin, as reported at 1997(90) E.L.T. 241 (S.C), Hon'ble Supreme Court has held as under; "Prosecution - Customs - Evidence required to prove offence - Supreme Court has consistently been keeping in view the object of Customs Act, 1962 viz. to safeguard duty and prevent evasion and smuggling which are organised white collar crimes co....
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....erabad V. Tallajalmpex, as reported at 2012(279) ELT 433 (Tri.), it was held that "In a quasi-judicial proceeding, strict rules of evidence need not to be followed. Cross examination cannot be claimed as a matter of right." (iv) In the case of M/s. Patel Engg. Ltd. vs UOI, as reported at 2014 (307) ELT 862 (Bom.), Hon'ble Bombay High Court has held that; "Adjudication - Cross-examination ~ Denial of held does not amount to violation of principles of natural Justice in every case, instead it depends on the particular facts and circumstances - Thus, right of cross-examination cannot be asserted in all inquiries and which rule or principle of natural justice must be followed depends upon several factors - Further, even if cross-examination is denied, by such denial alone, it cannot be concluded that principles of natural justice had been violated." [para 23] (v) Hon'ble Tribunal in its decision in Sridhar Paints v/s Commissioner of Central Excise, Hyderabad, as reported at 2006 (198) ELT 514 (Tri-Bang), has held that: ".... ... ..... .... denial of cross-examination of witnesses/ officers is not a violation of the principles of natural ....
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....v. Collector - reported at 2000 (124) E.L.T, 118 (Cal H.C.): - In this case it has been held that the right to confront witnesses is not an essential requirement of natural justice where the statute is silent and the assessee has been offered an opportunity to explain allegations made against him. (iii) A.K. Hanbeen Mohammed vs. Collector - reported at 2000 (125) E.L.T. 173 (Mad HC): wherein it has been held that the strict rule of burden of proof applicable to criminal prosecution may not be applicable to proceedings before Customs authorities. (iv) Shivom Ply N-Wood Pvt. Ltd. Vs Commissioner of Customs & Central Excise Aurangabad 2004 (177) E.L.T 1160 (Tri. - Mumbai): - wherein it has been held that cross-examination not to be claimed as a matter of right)." 36. Learned advocate Mr. Dave also submitted that it has been held that request for cross-examination by noticee who has made voluntary statement during the investigation is not acceptable. In support of his submissions, reliance is placed on the following decisions: "(i) In the case of Surjeet Singh Chhabra v. UOI, as reported at 1997 (89) E.L.T. 646 (S.C.), it was held that "Customs Of....
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.... "...............In adjudication proceedings, cross-examination cannot be claimed as a matter of right on mere asking for it, without furnishing reasons for the same", 38. It was submitted that the request for cross-examination of petitioner, who has made voluntary statement during the investigation explaining the facts where there is no dispute about the facts is not acceptable in view of the following case law: "(i) In the case of Union of India vs. Rajendra Bajaj as reported at 2010 (253) E.L.T. 165 (Bom) Hon'ble Bombay High Court, stated in para 6 which is reproduced herein below- "the Supreme Court held in K.L. Tripathi vs. State Bank of India (1984) 1 SCC 43 that where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases and does not vitiate the decision". 39. Learned advocate Mr. Dave vehemently submitted that the cross-examination of co-noticee is not permissible and when the noticee failed to provide any cogent or valid reason for the cross-examination of the persons who are co-noticee, the....
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....tion would not be maintainable. It was held by the Hon'ble M.P.High Court that the appellate authority is competent to examine the effect of non-supply of non relied upon documents data while deciding the appeal and practice of the petitioner to delay the proceedings by demanding such relied upon documents cannot be the cause for filing of the writ petition. • Reliance was placed on the decision of Aziz Fakirmohamed Sumbhaniya vs. Union of India (SCA No. 13091/2018) of this Court wherein it was held as under: "34 Denial of right to cross-examine the witnesses whose statements recorded under section 108 of the Customs Act and of those officers who recorded such statements is much emphasized upon. "34.5 The cross-examination, in a given scenario, as was there before the Apex Court, is held not to be an absolute right and the facts of every matter shall need to be regarded by the Court at the time of considering the request for cross-examination. This Court also is not oblivious of the fact that without proving the version of the witnesses in examination-in-chief, it is impermissible for the prosecution/department to take into account their evidence give....
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....r Health Care Limited reported in 2020 SCC online SC 440 wherein the Apex Court has held about the availing of the alternative efficacious remedy instead of writ jurisdiction under Article 226 of the Constitution of India. The Apex Court in the facts of the said case also held that the High Court was not justified in condoning the delay which would otherwise not be possible for preferring appeal as provided under the statute and High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. It was therefore submitted that in the facts of the case when the adjudicating authority has considered the aspect of the providing sufficient opportunity and has consciously arrived at the decision for not granting cross examination in the facts of the case, the petitioner can raise all the contentions before the appellate authority and therefore, no interference is required to be made by this Court while exercising jurisdiction under Article 226 of the Constitution of India. • Reliance was placed on the decision of Surjeet Singh Chhabra v. Union of India reported in 1997 (1) SCC 508 wherein in ....
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....cross-examination passed the impugned order by placing reliance on such documents retrieved from the pen-drive and statements of Ms. Nita Parmar and Mr. Rutugna Trivedi. 43. It was submitted that similarly reliance placed on the case of SR Digital TV and Broadband Pvt Ltd. (supra) would also not be applicable in the facts of the case as in the said case the assessee instead of appearing before the adjudicating authority kept on requesting to supply the copies of the data collected from the laptop instead of participating in the adjudication proceedings. In such circumstances, the Hon'ble Madhya Pradesh High Court observed that when any of the noticee prayed for fair trial then there should be effective participation in the entire trial. It was submitted that in the facts of the case the petitioner appearing before the adjudicating authority and repeatedly requests to provide copies of relied upon documents. It was therefore submitted that the said decision would be of no help to the respondent authority. 44. With regard to reliance placed on the decision of the Aziz Fakirmohamed Sumbhaniyva (supra), it was submitted that in the facts of the said case, show cause notice along ....
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.... on 04.12.2021 and as per the provision of section 129A(3), the appeal was required to be filed within three months and accordingly, the petition filed by the petitioner is within the period of limitation. 48. It was further submitted that the time period from 15.03.2020 to 28.02.2022 is required to be excluded for the purpose of limitation in view of the Covid-19 pandemic as per the order passed by the Hon'ble Supreme Court on 10.01.2020 in cognizance of extension of limitation in Misc. Application No. 21/2022 in Misc. Application No. 665/2021 in Suo Motu writ petition (C) No.3 of 2020. It was therefore submitted that in terms of the judgement and order dated 10.01.2022, last date of filing of appeal was 30.05.2022 whereas in the facts of the case writ petition is filed on 07.03.2022 which was well within the period of limitation in view of the aforesaid decision of the Apex Court excluding the period of Covid-19 while calculating the period of limitation. 49. Learned Senior Advocate Mr. Joshi has also placed on record orders passed by the CESTAT in case of other co-noticee to point out that appeals filed by the other co-noticee are already allowed by the CESTAT by deleting ....
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..... All the noticee were also made liable to penalty to be imposed under the provision of 112(b), 114AA and 117 read with section 123 of the Customs Act, 1962. In all, there were 26 notices in the show-cause notice. The show-cause notices also accompanied with list of relied upon documents (RUB) to the show-cause notices containing the Panchama drawn. Item Nos. 37 and 38 on which heavy reliance relevant is placed, with regard to Panchama dated 27.06.2019 and 28.06.2019 drawn for examination of the data containing the pen drive withdrawn from the residential premises of Ms. Nita Parmar wherein it is stated that retrieved documents are available for inspection. The petitioners filed reply in the month of March 2020 to the show-cause notice dated 24.12.2019 wherein, request was made for cross-examination of Ms. Nita Parmar on the ground that the entire case was based on the documents retrieved from the pen drive seized from the residential premises. Cross-examination was also sought of Mr. Rutugna Trivedi who is the petitioner of Special Civil Application No. 488 of 2023. 54. It was also contended in the reply that a request was also made for supply of the relied upon documents. 5....
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....art from relying upon the decision of this Court in case of Mahek Glazes Pvt. Ltd vs. Union of India (supra), heavy reliance was placed on the decision of the Delhi High Court in case of Krishna (supra) wherein also it is held that rejection of request for cross examination of witness on the ground that the request was made casually and few of the witnesses were interlinked was contrary to the decision of the Hon'ble High Court in case of Kanungo & Company vs Collector Of Customs And Ors reported in 1983 13 ELT 1486. It was therefore submitted that denial of right of cross-examination of such witnesses amounts to violation of principle of natural justice and the petitioners are entitled to cross-examination by the adjudicating authority. 59. It also appears from the record that after the hearing which took place on 12.10.2021 and submission of reply on behalf of the petitioner, no further hearing was scheduled by the adjudicating authority and the impugned order was issued on 29.11.2021 without deciding the request of the petitioners to grant cross-examination. 60. The decision relied upon by the petitioners in support of the request for cross-examination resulting into viola....
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...., it would be a futile exercise for the adjudicating authority to again pass a separate order rejecting the demand for cross-examination. Therefore, we are of the opinion that such a course would result into an empty formality so as to comply with the principles of natural justice. Even if the matter is remanded back to the adjudicating authority, there is a fait accompli of rejection of the request of the petitioners as stated by the adjudicating authority in the impugned order and no fruitful purpose would be served except setting aside the order and putting the clock back for such empty formality. If the appellate authority is of the opinion that the cross-examination is required to be given to the petitioners on the basis of the contention which may be raised by the petitioners after considering the observations made by the adjudicating authority in the impugned order, it is for the appellate authority to consider such request by calling for remand report from the adjudicating authority to that extent. However, simply because the right of cross-examination is denied to the petitioners, we are of the opinion that the matter should not be remanded back to the adjudicating authori....