Harish Chander, President

1. M/s. Indo Plast, 161, Vithal Udyognagar, Vallabh Nagar, Gujarat-388121, Shri A.P. Goradia and Shri Mohanbhai Kapoor Chand Jain had filed the above captioned appeals being aggrieved from a common Order passed by the Collector of Customs, Customs House, Kandla. The appellants had also filed the stay applications for dispensing with the pre-deposit of the following duty and penalty amounts :-

Notices of hearing were issued for the hearing of stay applications today (16-4-1992) for the above captioned appeals. Shri A.S. Sundar Rajan, learned Consultant has appeared on behalf of the appellants. Shri A.S. Sundar Rajan pleaded that the appellants had imported AVS plastic and the declaration was made as Synthetic Resin (W.S.) ABS Moulding Powder (Recycled) and the Revenue had assessed the same as ABS virgin material. Shri Sundar Rajan pleaded that Revenue's whole case rests on two test reports of M/s. IIT and M/s. ABS Plastics which appear on page Nos. 65 and 66 of the paper book and pages 62 to 64 of the paper book. Shri Sundar Rajan pleaded that by their letter dated 4-10-1990 which appears on page No. 120 of the paper book the appellants had asked for the cross-examination of the witnesses. Reliance has been placed on the two chemical reports and only the statement of Shri R.S. Parmar, who is the Chief Manager of the ABS Plastics Ltd. and M/s. ABS Plastics Ltd. is the competitor of the appellants. He pleaded that Shri M.K. Trivedi of M/s. I.I.T. was not produced. He also argued that the letter dated 4-10-1990 written by the appellants to the Collector was duly acknowledged and an intimation to this effect is there vide Assistant Collector (Adjudication) letter dated 6-12-1990 which appears on page 122 of the paper book where the Collector had asked the reasons for requiring cross-examination of the persons mentioned in the letter dated 4-10-1990 before submission of the reply to Show Cause Notice. Shri Sundar Rajan pleaded that there was no such condition for replying to Show Cause Notice. The appellants wanted to cross-examine the witnesses prior to submission of the reply but before the adjudicating authority at the time of personal hearing and drew the attention of the Bench to the letter dated 7-2-1991 which appears at page No. 123 of the paper book. Shri Sundar Rajan argued that there was denial of principles of natural justice. He pleaded that pre-deposits should be dispensed with and also stated that since there was denial of principles of natural justice, the matter may be remanded to the Collector of Customs having jurisdiction for re-adjudication. Shri Satish Kumar, learned JDR, who has appeared on behalf of the respondent stated that there was no infirmity in the order passed by the Collector. The Collector had rightly relied upon the test reports given by the I.I.T. as well as M/s. ABS Plastics Ltd. However, he stated that there was no necessity of cross-examination but the appellants wanted the same and he has got no objection to the request of the learned Consultant for the remand of the matter if the Bench dispenses with the pre-deposit of duty and penalty amounts.

2. We have heard both sides and have gone through the facts and circumstances of the case. The relevant extract (para 2) of the appellants' letter dated 4-10-1990 which appears on page No. 120 of the paper book is reproduced below :-

"At the outset, it is submitted that since the allegations contained in the Show Cause Notice are based on certain enquiries conducted by the DRI with various persons, it is necessary to cross-examine the following : (i) Investigating Officer of the DRI, namely Sh. R.H. Khokar, Assistant Director, (ii) Sh. P.M. Agada, Manager of M/s. Liladhar Passo Forwarders (P) Ltd., (iii) Sh. M.K. Trivedi of Indian Institute of Technology, Bombay, (iv) Sh. J.K. Shana, Chemist, (v) Sh. S.M. Naik, Quality Control Engineer and (vi) Sh. R.S. Parmar, Chief Manager (R D) of M/s. ABS Plastics Ltd. You are requested