IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01.07.2022 CORAM THE HONOURABLE DR. JUSTICE ANITA SUMANTH W.P.No.27973 of 2019 &

W.M.P.No.27576 of 2019 P.Karthikeyan ... Petitioner Vs

1.The Joint Commissioner of Customs (CCO), No.1, Williams Road, Cantonment, Tiruchirapalli – 620 001.

2.The Additional Commissioner of Customs, 6/7, A.T.D. Street, Race Course Road, Coimbatore – 641 018. ... Respondents PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the impugned Order-in-Original No.TCP-CUS-PRV-JTC-014-19 dated 28.06.2019 passed by the 1^st respondent in C.No.VIII/10/47/2018-Cus Adj. and quash the same.

For Petitioner : Mr.Hari Radhakrishnan For Respondents : Mr.A.P.Srinivas Senior Standing Counsel

ORDER

The challenge is to an order in original dated 28.06.2019, where under the respondents have imposed penalty upon the petitioner in terms of Sections

112 & 114AA of the 'Customs Act, 1962' ('Act') (for brevity 'CA Act, 1962').

2. The petitioner had suffered an order-in-original that had come to be challenged by way of writ petitions in W.P.Nos.33741 & 33742 of 2016. Vide order dated 30.09.2016, a learned Single Judge of this Hon'ble Court rejected the writ petitions on the ground that there was an efficacious statutory remedy that was available as against which the petitioner filed writ appeal Nos.130 &

131 of 2017.

3. The short point raised therein was that there had been violation of principles of natural justice insofar as the petitioner alleged that it had not been afforded an opportunity to cross-examine certain witnesses. A Division Bench (of which I was a part) took the view that the petitioner should be granted such opportunity and to that extent modified the order of the Learned Single Judge as well as that of the Adjudicating Authority, rejecting the prayer for cross-

examination of the Official Central Revenue Control Laboratory.

4. A time frame of two months were granted for the above purpose, and thereafter orders were directed to be passed, in accordance with law, based on the result of the cross-examination. The impugned order-in-original dated

28.06.2019 was not set aside by the order in writ appeals but had been confirmed, subject to the result of the opportunity to cross-examine granted.

5. The petitioner was thereafter permitted to cross-examine the chemical examiner and the result/effect of the cross-examination taken note of by the original authority in the impugned order dated 28.06.2019. The authority arrives at a conclusion that the cross-examination has not brought out any material that would support the stand of the petitioner and persuade him to take a view differently from that taken by him in the original proceeding. I am of the considered view that the procedure followed by the authority is appropriate and calls for/warrants, no interference.

6. The challenge to the imposition of the penalty is restricted to the penalty under Section 114 AA of the CA Act, 1962. For this purpose, learned th Counsel for the petitioner relies upon an extract of the 27 Report of the Standing Committee on Finance(2005-2006) that sets out the reasons for the insertion of Section 114 A of the aforesaid Act as follows:- “63. The information furnished by the Ministry states as follows on the proposed provision:

“Section 114 provides for penalty for importer exportation of goods. However, there have been instances where export was on paper only and no goods had ever crossed the border. Such serious manipulators could escape penal action even when no goods were actually exported. The lacuana has an added dimension because of various export incentive schemes. To provide for penalty in such cases of false and incorrect declaration of material particulars and for giving false statements, declarations, etc., for the purpose of transaction of business under the Customs Act, it is proposed to provide expressly the power to levy penalty up to 5 times the v