The court established that the provisions of the Customs Act do not guarantee an absolute right to cross-examine witnesses in adjudication proceedings, and the denial of such a right does not inherently violate the principles of natural justice if there is sufficient corroborative evidence.

JUDGMENT :

G. S. Kulkarni, J.

1. This petition under Article 226 of the Constitution of India is filed praying for the only relief that the order-in-original dated 6 June 2017 passed by the Commissioner of Customs, Pune, be quashed and set aside.

2. At the outset, it may be observed that an objection was raised on behalf of the respondent that the petitioner has a remedy of filing an appeal against the order-in-original as provided for under Section 129A of the Customs Act (for short ‘the Customs Act’) before the Customs, Excise and Service Tax Appellate Tribunal (for short ‘CESTAT’). However, the petitioner would submit that the petitioner ought not to be relegated to such statutory remedy as the impugned order involves breach of the principles of natural justice, as the petitioner was not provided an opportunity to cross examine the persons whose statements came to be recorded in the course of the investigation. In supporting such contention, learned Counsel for the petitioner has referred to the provisions of Section 138B of the Act which provides for relevancy of statements under certain circumstances.

3. Before, we proceed to consider the rival contentions, we may refer to the relevant facts.

FACTS

4. On 29 March 2000 a show cause notice was issued to the petitioner demanding differential customs duty of Rs.2,45,83,219/- under Section 28 of the Customs Act. The petitioner had invoked the jurisdiction of the Settlement Commission. On 20 February, 2001, the Settlement Commission admitted the petitioner’s application for settlement of the case. By an order dated 17 October 2003, the Settlement Commission rejected the petitioner’s application on the ground that it did not have jurisdiction to entertain the application. The petitioner challenged such order of the Settlement Commission before this Court in Writ Petition No.2 of 2004. A Division Bench of this Court by an order dated 21 July 2005 disposed of the said writ petition remitting the case to the Settlement Commission inter alia observing that the Settlement Commission has jurisdiction to entertain the application filed by the petitioner. The Revenue, however, being aggrieved by the said orders passed by this Court, had approached the Supreme Court against the order dated 21 July 2005. The Supreme Court by its order dated 19 August 2015 dismissed the revenue’s appeal inter alia observing that the High Court had merely remitted the case to the Settlement Commission and therefore, no interference is called for. It was, however, observed that if the petitioner did not approach the Settlement Commission within three months from the said order, his right to approach the Commission will stand forfeited and that the orders of the Settlement Commission rejecting the petitioner’s application, shall stand revived.

5. It appears from the averments as made in the petition that the petitioner could not approach the Settlement Commission and consequently by virtue of the orders passed by the Supreme Court, the issue before the Settlement Commission as raised by the petitioner, has attained finality.

6. In this view of the matter, the Department had taken up the show cause notice dated 29 March 2000 for adjudication. The petitioner has averred that a reply to the show cause notice was submitted by his Advocate’s letter dated 15 February 2017. On perusal of the petitioner’s Advocate’s letter, it clearly appears that the petitioner has not at all addressed the principal allegations as made in the show cause notice, namely, that there was concealment of ball bearings in the declared consignment of Damar Batu by the petitioner when the investigation revealed that the cargo declared by the petitioner as Damar Batu, imported vide Bill of Entry No.000479 dated 5 October 1999 on being examined at Container Freight Station Pimpri, Pune, in the presence of Mr.Deepak Bhargawa, CHA, proprietor of M/s. Avignon Shipping Agency and in the presence of two panchas, the investigation revealed that foreign orig