Rachna Gupta ORDER
Rachna Gupta, Member (J)
1. Present appeal has been filled against the Order-in-Original adjudicating authority bearing No. 05/2022 dated 13.8.2021 vide which the request for cross examination of panch-witnesses and of departmental officers with respect to Show Cause Notice No. 33238 dated 7.2.2020 and corrigendum to Show Cause Notice No. 1720 dated 18.1.2021 has been rejected.
2. The appellant was suspected based upon the intelligence to be engaged in evasion of duty and other government tax by way of mis-declaration of brand of goods/description of the goods and also through undervaluation in imports. The said Show Cause Notice was issued proposing rejection of classification of the goods in the Bills of Entry as parts and panel of LED TV and proposing the goods to be classified as complete set of LED TV. The declared value was proposed to be re-determined with a demand of differential customs duty and imposition of penalty. While adjudicating the said Show Cause Notice the appellant requested for cross examination of 9 witnesses and officers which was rejected vide the order under challenge holding that there is sufficient admission of the appellant-applicant about the allegations levelled in the Show Cause Notice. Denial of cross examination in such circumstances is alleged by the appellant to be violative of principles of natural justice.
3. The appellant is aggrieved by the denial of cross examination in the impugned appeal and prays for setting aside of said order and a permission to cross examination of panch witnesses of departmental officers based upon whose statement that the impugned Show Cause Notice has been issued.
4. We have heard Shri Akhil Krishan Maggu, learned Counsel for the Appellant and Shri Rakesh Kumar, learned Authorised Representative for the Department.
5. It is submitted on behalf of the appellant that the right to cross examination is an indefeasible right. The violation thereof amounts to violation of basic principles of natural justice i.e., audi alteram partem. It is submitted that to substantiate the charges against the appellant persons whose statements have been relied upon need to be cross examined to enable the appellant to show the discrepancy in the show cause notice and to show the negligence during the investigations. It is mentioned that the allegation that full TV sets have been imported by the appellants can be conflicted only by cross examining the investigating officers and even the panch witnesses in whose presence the imported goods were opened and examined. The cross examination was required more for the reason that the department has failed to file any Chartered Engineers' report about the goods so as to verify if the goods were mere parts of TV sets or were complete sets of TV. The appellant is otherwise engaged in selling imported spare parts. Various bills and purchase orders and invoices in the possession of the appellant are required to be produced and the witnesses are required to be confronted with respect to the said documents. It is further submitted that there have otherwise been several illegalities in the process of investigations. The proprietor of the appellant Shri Harsh Mittal was illegally and forcibly detained by the investigating authority. The order is accordingly prayed to be set aside and appeal is prayed to be allowed.
6. Learned Counsel places reliance upon the following decisions:
1. Zahira Habibullah Sheik vs. State of Gujarat [MANU/SC/1344/2006 : 2006 AIR SC 1367];
2. Ayaaub Khan Noorkhan Pathan vs. The State of Maharashtra & Ors. decided on 08.11.2012 in Civil Appeal No. 7728 of 2012.
3. Laxman Exports Ltd. vs. Collector of Central Excise decided on 18.4.2003 [MANU/SC/0548/2002 : 2005 (10) SCC 634];
4. Basudev Garg vs. Commissioner of Customs, by Division Bench of Hon'ble High Court of Delhi delivered on 12.4.2013.
5. Writ Petition 1854 of 200........