Calcutta High Court
M/S. Eastern Traders & Anr vs The Commissioner Of Customs ... on 22 June, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP No. 269 of 2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
M/S. EASTERN TRADERS & ANR.
Versus
THE COMMISSIONER OF CUSTOMS (PREVENTIVE),
W.B., KOLKATA
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 22nd June, 2018.
Mr. Arijit Chakrabarti, Mr. Nilotpal Chowdhury, Advs.
...for the petitioner Mr. K.K. Maiti, Mrs. Sanjukta Gupta, Advs.
...for the department The Court : An adjudication order dated February 20, 2010 is under challenge in the present writ petition.
Although the impugned order is appealable, learned advocate for the petitioner submits that, the petitioner seeks to maintain the writ petition on the ground of breach of principles of natural justice. He submits that, despite the request being made for cross-examination, his client was disallowed the right of cross-examination of the identified persons. Moreover, the petitioner was not afforded copies of all the documents which the prosecution had relied upon in the proceedings. He 2 refers to the impugned order and submits that, the finding portion of the impugned order is a replica of the show cause notice. The impugned order does not deal with the contentions raised by the petitioner. Consequently, he submits that, the impugned order being vitiated, the same should be set aside.
Learned advocate appearing for the department submits that, the petitioner did not ask for cross-examination of the prosecution witnesses whose statements were taken by the authorities. What the petitioner requires is cross-examination of the authors of certain documents, which were relied upon in the adjudication proceedings. He contends that, the petitioner is not entitled to cross-examine the author of the documents as such authors were not introduced as witnesses into the proceedings. Consequently, the request for cross-examination was not kept. He refers diverse portion of the impugned order in support of his contention.
As noted above, an adjudication order dated February 20, 2018, which is appealable, is under challenge in the present writ petition. The primary ground of challenge is breach of principles of natural justice. It appears from the records that, the department having received specific intelligence with regard to unscrupulous exporters, operating at Petrapole area, availing of undue drawback benefit, by way of grossly overvaluing their export consignments, an investigation was undertaken, and 3 ultimately a show cause notice dated June 26, 2015 was issued. The petitioner had replied to such show cause notice. The show cause notice details the list of documents relied upon. It also details the four statements of natural persons which would be relied upon in the adjudication proceedings.
The petitioner does not require cross-examination of the natural persons whose statements were relied upon in the adjudication proceedings. The petitioner requires cross-examination of the authors of few documents. Such documents are relied upon in the adjudication proceedings. The petitioner requires the head of operation of an entity which issued a report dated April 22, 2013. Apart therefrom the petitioner requires the cross-examination of the Director-General of Customs Intelligence & Investigation Directorate, Dhaka, Assistant Vice-President, National Bank Limited, Khulna Branch and the Competent Officer, DGFT Authorities. The persons whom the petitioner calls for cross-examination are authors of documents which were relied upon in the proceedings. The impugned order does not say that, such persons had deposed in the proceedings. It is for the petitioner to adduce evidence through those persons or through any other person as defence witness. Since such persons were not called upon by the prosecution to adduce any evidence, the question of cross-examination of such persons does not arise. 4
Learned advocate for the petitioner contends that, his request for cross-examining such persons should be taken in true sprit, that is to mean, that such persons should allowed to be examined and that, user of the word 'cross-examination' may be a misnomer in the facts of the case. With respect, the petitioner applied for cross-examination of the persons concerned. The word 'cross-examination' has a particular connotation and contour. The concept of cross-examination cannot be equated to that of examination-in-chief. At any stage, in the adjudication proceedings, did the petitioner try to correct its so-called error or misnomer. It is only in the course of hearing of the present writ petition, after it was pointed out by the Court that, no natural person came to depose for the prosecution whom the petitioner wanted to cross-examine, did the petitioner change its stand to contend that, the request for cross-examination was essentially a request for examination-in-chief. Such stand was not taken in the adjuciation proceeding. The impugned order cannot be faulted on such ground.
So far as the so-called non-furnishing of the documents are concerned, the same is a contentious issue. It is a issue of fact. The same as an issue of fact can be considered by the Appellate Authority. As a Writ Court I need not enter into such arena on the basis of the materials made available to Court. The petitioner was aware of the documents disclosed. It could have obtained the copies of the document from the 5 authors of the document also, if it wanted such document. Nothing is placed on record to suggest that, the petitioner had approached the author of those documents for the purpose of copies thereof, assuming that the authorities did not make over copies of the documents specified in the show cause notice.
It is the contention of the petitioner that, the operative portion of the impugned order is a replica of the show cause notice. In a given case, the adjudication authority may agree with the show cause notice. It can arrive at a finding which was held prima facie while issuing the show cause notice. That, per se, does not vitiate the impugned order on the touchstone of either breach of principles of natural justice or the impugned order being perverse.
The Court is informed that the petitioner had already made a pre-deposit for the purpose of preferring an appeal.
Under such circumstances, I am not minded to interfere in the facts of the present case.
W.P. No. 269 of 2018 is dismissed. No order as to costs.
(DEBANGSU BASAK, J.) TR/ 6