M/S Mohammed Fariz & Co v. The Commissioner of Customs

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR MONDAY, THE 11TH DAY OF JUNE 2018 / 21ST JYAISHTA, 1940 WP(C).No. 480 of 2018 PETITIONER(S) M/S MOHAMMED FARIZ & CO, XII/386 NEAR GOVT HIGH SCHOOL, CHALISSERY P.O, PALAKKAD DISTRICT - 679 536. REPRESENTED BY ITS MANAGING PARTNER M.M EBRAHIM. BY ADVS.SRI.C.K.KARUNAKARAN SRI.G.HARIKUMAR (GOPINATHAN NAIR) RESPONDENT(S): THE COMMISSIONER OF CUSTOMS CUSTOMS HOUSE, WILLINGDON ISLAND, COCHIN - 682 009. R1 BY ADV. SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-06-2018, ALONG WITH WPC 7554 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 480 of 2018 (H) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE SEIZURE MAHAZAR DATED 14.02.2012. EXHIBIT P2 TRUE COPY OF SHOW CAUSE NOTICE NO.SIIB/DRI/13/2016 CUS DATED 09.11.2016 ISSUED BY RESPONDENT. EXHIBIT P3 TRUE COPY REQUEST FROM CROSS EXAMINATION MADE BY THE PETITIONER DATED 02.02.2017. EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 21.12.2017 SUBMITTED BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF ORDER F.NO.S66/DRI/25/2016-17 CCU CUS DATED 22.12.2017 OF THE RESPONDENT. (TRUE COPY) P.S. TO JUDGE. **“CR”** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) Nos.480 & 7554 of 2018** **-----------------------------------------------** **Dated this the 11th day of June, 2018.** ## **J U D G M E N T** The scope of the right of persons involved in quasi judicial proceedings to adduce oral evidence and cross-examine persons, whose statements form part of the materials against them, needs to be settled in these matters. 2. The facts relevant in W.P.(C) No.480 of 2018 are the following: The petitioner is a partnership firm engaged in the business of processing betel nuts. The petitioner used to import betel nuts into India in large quantities for their business. It is alleged by the petitioner that based on the statements given by certain persons who are involved in the business of import of betel nuts, the authorities under the Customs Act conducted searches in the offices of the petitioner and seized certain documents. Later, the petitioner was issued Ext.P2 notice by the respondent calling upon them to show WPC Nos.480 & 7554 of 2018 2 cause why the value of the betel nuts imported by the petitioner from Indonesia covered by 26 Bills of Entry referred to therein shall not be re-determined and the differential duty amounting to Rs.6,42,67,411/- with interest and penalty realised from them. According to the petitioner, the value of the goods imported by them as covered by the Bills of Entries referred to in the notice, has been correctly declared by them. It is also their case that proceedings aforesaid are initiated solely based on the statements obtained by the authorities from two persons viz, Narendra Lodya and Dhaval Lavasiya and the statements are factually incorrect. The petitioner, in the circumstances, requested the respondent to provide copies of the statements obtained from the aforesaid persons and permit them to cross-examine the said persons to discredit their versions. Ext.P3 is the representation preferred by the petitioner in this regard. The respondent has not responded to the request made by the petitioner in Ext.P3 representation. The petitioner, therefore, submitted Ext.P4 representation also to the respondent by way of a reminder to Ext.P3 representation. Though the petitioner has been given copies of WPC Nos.480 & 7554 of 2018 3 the statements sought by them in terms of their representations, their request for cross-examining the persons referred to in their representations was, however, turned down by the respondent. Ext.P5 is the communication issued to the petitioner by the respondent in this connection. The stand taken by the respondent in Ext.P5 communication is that the allegations against the petitioner in the notice are not solely based on the statements of the persons referred to by the petitioner. As such, according to the respondent, the petitioner is not entitled, as of right, to cross examine the persons referred to by them. Ext.P5 communication is under challenge in the writ petition. 3. The facts relevant in W.P.(C) No.7554 of 2018 are the following: The petitioner is a company engaged in providing valuation services. It is stated that a company called M/s.Moksha Business Machines, has imported into India used multi-functional digital photocopiers and printers through Cochin Port and filed Bills of Entry for clearance of the same. The goods imported by the said company were, however, not permitted to be cleared by the authorities under the Act WPC Nos.480 & 7554 of 2018 4 alleging violation of various statutory provisions. At that point of time, at the instance of the importer, one of the technical experts of the petitioner and his team inspected the imported goods and issued an inspection and valuation certificate. It is stated by the petitioner that the said inspection was conducted under the supervision of the officers of the department following the standard procedures prescribed for valuation and inspection of such goods. It is also stated that the functionality of all the machines, its age and residual life were ascertained by the technical expert of the petitioner in the course of inspection and the said particulars have also been furnished in the inspection report. It is stated by the petitioner that later, proceedings have been initiated by the respondent against the importer for confiscating the imported articles for the alleged violation of the statutory provisions. Ext.P1 is the show cause notice issued by the respondent in this connection. In terms of the said notice, proceedings are initiated against the petitioner also alleging that the petitioner has knowingly given an incorrect report without identifying the functional and non functional machines. According to the respondent, in the WPC Nos.480 & 7554 of 2018 5 circumstances, they are liable to pay penalty under Sections 112(a) and 114A of the Act. In terms of Ext.P1 notice, in the circumstances, the petitioner was also called upon to show cause why penalty shall not be imposed on them under the said provisions. Ext.P3 is the reply sent by the petitioner to Ext.P1 show cause notice. The specific stand taken by the petitioner in Ext.P3 reply is that the inspection of the cargo was conducted by the technical expert of the petitioner in the presence of the Customs Officers; that functionality of each and every machine was tested by them and it is thereafter that the report was issued. In so far as it is alleged that the petitioner has not tested the functionality of all the machines, in terms of the said reply, they have requested the authorities to permit them to examine the officers of the department who were present at the time of inspection, for the purpose of establishing that the functionality of all the machines were tested by the technical expert of the petitioner in the course of inspection. The petitioner was given an opportunity of personal hearing thereafter on Ext.P1 proceedings. Since the petitioner was not permitted to examine the Customs Officers on the date of WPC Nos.480 & 7554 of 2018 6 hearing, the petitioner submitted Ext.P3(a) request also to the respondent for the said purpose. The request made by the petitioner in Ext.P3 reply and Ext.P3(a) reminder for examination of the officers of the department has been turned down by the respondent as per Ext.P4 communication stating that there are no justifiable reasons for the same. Ext.P4 is under challenge in the writ petition. 4. Heard the learned counsel for the petitioners as also the learned Standing Counsel for the respondent. 5. The learned counsel for the petitioners vehemently contended that the impugned orders are _per se_ illegal, for the same, if allowed to stand, would result in noncompliance of the principles of natural justice. Per contra, the learned Standing Counsel for the respondent supported the impugned orders contending that the same would not violate the principles of natural justice. It was also contended by the learned Standing Counsel that, at any rate, the right asserted by the petitioners to cross examine the persons involved in the first case and examine the Custom Officers involved in the second case cannot be adjudicated at this stage in a WPC Nos.480 & 7554 of 2018 7 proceedings under Article 226 of the Constitution. According to the learned Standing Counsel, the question whether there was violation of the principles of natural justice could be ascertained only after the culmination of proceedings, depending on the findings rendered therein. It was pointed out by the learned Standing Counsel that the questions of this nature are therefore, essentially matters for the appellate authority under the Act to consider if the decision of the competent authority goes against the parties. 6. I have given my thoughtful consideration to the contentions raised by the learned counsel on either sides. While in W.P.(C) No.480 of 2018, the petitioner seeks permission to cross-examine two persons to discredit their statements obtained under Section 108 of the Act which are relied on against them, in W.P.(C) No.7554 of 2018, the petitioner seeks permission to examine the Customs Officers present at the time of inspection of the imported machines by the technical expert of the petitioner to prove that the functionality of all the machines referred to in the proceedings have been examined by the technical expert of the petitioner. WPC Nos.480 & 7554 of 2018 8 7. It is beyond dispute that opportunity of hearing in compliance of the principles of natural justice, as evolved in course of time, in the case of proceedings under the Act, is that in cases of violation of statutory provisions, the competent authority would first issue a notice calling upon the party to show cause why action shall not be taken against him for having violated the statutory provisions. The noticee thereby gets an opportunity to place on record rebuttal facts and contradict the allegations against him. Thereupon, if the competent authority does not find the explanation of the party acceptable, he will be given an opportunity of personal hearing also before further action is taken in furtherance to the notice, so as to enable him to put forward his stand in an effective manner. The opportunity of fair and reasonable hearing in proceedings of this nature, no doubt includes an opportunity to place on record rebuttal facts and evidence and cross-examine the persons whose statements are relied on by the competent authority. The questions arise for consideration on the facts of these matters are therefore, (i) whether in a quasi judicial proceedings, the competent authority is duty bound to permit WPC Nos.480 & 7554 of 2018 9 the noticee to cross-examine persons whose previous statements form part of the materials on record for the mere sake of asking, (ii) whether noticee in such proceedings is entitled to adduce oral evidence as of right and (iii) whether issues relating to non compliance of the principles of natural justice, especially those relating to the rights of parties to examine and cross-examine persons, could be raised by the noticee in a proceedings under Article 226, before the culmination of the proceedings. 8. No doubt, principles of natural justice have been held to be sacrosanct and have been placed at a high pedestal in the adjudication proceedings which are judicial, quasi judicial or administrative. The question as to which of the principles of natural justice or which of the facets of it is applicable, would depend on the nature of the litigation and the statute under which the adjudication is undertaken. It is settled by now that every departure from principles of natural justice may not result in miscarriage of justice, unless prejudice is caused or demonstrated (useless formality theory). The question as to what extent the principles of natural justice needs to be WPC Nos.480 & 7554 of 2018 10 stretched in a given case has to be considered with an element of flexibility. It is apposite in this context to refer to a passage from paragraph 19 of the judgment of the Supreme Court in _**Canara Bank v. Debasis Das**_ [(2003) 4 SCC 557], which reads thus : **“** Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. ” ## In _**Andaman Timber Industries v. Commissioner of**_ _**Central Excise, Kolkata-II**_ [(2016) 15 SCC 785], it is seen that the Apex Court took the view that not allowing the assessee to cross-examine a person whose statement is made the basis of an order is a serious flaw which makes the order a nullity in as much as it amounted to violation of principles of natural justice, because of which the assessee was adversely affected. But, in a given case, where the allegations are WPC Nos.480 & 7554 of 2018 11 founded not solely upon such statements, but on other materials as well, according to me, it is for the adjudicating authority to take a call as to whether the cross-examination of the person shall be permitted, if requested for by the noticee. No doubt, if the adjudicating authority decides not to give an opportunity to cross-examine the person concerned whose statement is relied on, the order would be certainly a nullity, if the same is founded on the said statement also. On the other hand, if the order is founded on materials other than the statement, the same would not be vitiated for non compliance of the principles of natural justice, merely for the reason that the noticee has not been given an opportunity to cross examine the person. Question (i) formulated for decision is answered accordingly. 9. Coming to the questions (ii) and (iii), it has to be conceded that in appropriate cases, the adjudicating authority in its discretion, shall permit examination of witnesses as well. But, the question as to whether in a given case, the decision declining permission to adduce evidence or cross examine persons is correct can be considered only after the WPC Nos.480 & 7554 of 2018 12 conclusion of proceedings, having regard to the prejudice, if any, caused to the party on account of the same. Needless to say, an approach to this Court under Article 226 of the Constitution, before the culmination of the proceedings in matters like this is wholly premature. Such a view would promote expeditious completion of the proceedings and prevent protraction of the proceedings at the instance of unscrupulous litigants. Questions (ii) and (iii) formulated for decision are answered accordingly. In the said view of the matter, I do not find any illegality in the impugned communications, and the writ petitions are, consequently, dismissed. **Sd/-** **P.B.SURESH KUMAR JUDGE** tgs