Custom, Excise & Service Tax Tribunal
S. Namasivayam vs Commissioner Of Customs, Chennai on 23 January, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
C/PD/158/2008 & C/SO/237/2008 & C/205/2008
(Arising out of Order-in-Original No.7424/2008 dated 20.3.2008 passed by the Commissioner of Central Excise (Adjudication), Chennai)
For approval and signature:
Honble Smt. Jyoti Balasundaram, Vice President
Honble Shri P. Karthikeyan, Member (T)
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
S. Namasivayam Appellant
Vs.
Commissioner of Customs, Chennai Respondent
Appearance Shri B. Satish Sundar, Advocate for the Appellants Shri V.V. Hariharan, Jt. CDR, for the Respondent CORAM Honble Smt. Jyoti Balasundaram, Vice-President Honble Shri P. Karthikeyan, Member (T) Date of Hearing: 23.01.2009 Date of Decision: 23.01.2009 Stay Order No. ____________ Final Order No. ____________ Per P. Karthikeyan Vide the impugned order the Commissioner of Central Excise (Adjudication) enhanced the assessable value of consignments of artificial flowers imported by M/s. Sai Crafts, Chrompet, Chennai under 10 Bills of Entry and demanded differential duty of above Rs.36.00 lakhs found to be short-paid at the time of clearance of the goods. In addition to ordering confiscation of the imported goods and a fine of Rs. one crore, the Commissioner imposed a penalty equal to the duty short-paid u/s 114A of the Customs Act (the Act)on the proprietor of M/s. Sai Crafts Shri S. Namasivayam. A quantity of 4822 Kg. of components of artificial flowers of value of Rs.4,79,506/- seized from the premises of M/s. Sai Crafts was confiscated u/s 111(d) and (m) of the Act and offered to be redeemed on payment of a fine of Rs.4 lakhs.
2. After hearing both sides on the stay application for sometime we find that it is possible to decide the appeal itself at this stage. Therefore we take up the appeal proper. The applicant challenges the impugned order mainly on the ground of violation of principles of natural justice. The case of the Revenue was built on the basis of material contained in the hard disc of a computer seized from the premises of M/s. Sai Crafts by the officers of DRI on 28.9.2006. The allegations were mainly framed on the basis of this material retrieved by GEQD and the statements recorded from Shri S. Namasivayam, proprietor of M/s. Sai Crafts. In the adjudication proceedings, the appellants had questioned the authenticity and reliability of the report of GEQD. In order to establish that the GEQD report was not reliable they sought to examine the author of the report. The learned counsel submits that in a similar case where the report of the GEQD was relied upon, the same adjudicating authority had allowed the request of the noticees therein to examine the GEQD. In the instant case the appellants came to know that their request to cross-examine the GEQD was denied only when the impugned order was received. It is submitted that the matter may be remanded for fresh adjudication by the Commissioner after allowing the appellants an opportunity to examine the GEQD. The learned Jt. CDR does not oppose the prayer.
3. After careful consideration of the records of the case and the submissions by both sides we find that the impugned order has been passed in gross violation of principles of natural justice. The entire case, we find, was built mainly on the basis of data contained in the hard disc of the computer recovered from the premises of M/s. Sai Crafts. Once the integrity of the data retrieved by the GEQD and relied upon by the investigating agency to frame allegations against the appellants was questioned it was not fair on the part of the adjudicating authority to have passed the adjudication order without considering the request made by the appellants to examine the GEQD. Appellants were not informed of the decision to deny the cross-examination and the reasons therefor before the case was decided. In the circumstances we set aside the impugned order and remand the case to the adjudicating authority to decide the case afresh after considering the request for cross-examination of the GEQD made by the appellants. Needless to say that a fresh decision shall be taken after affording the appellants a reasonable opportunity of being heard. The appeal and the stay application are disposed.
(Dictated and pronounced in open court)
(P. KARTHIKEYAN) (JYOTI BALASUNDARAM)
Member (T) Vice President
Rex
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