Calcutta High Court
Soumendu Saha vs Union Of India & Ors on 1 August, 2013
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
ORDER SHEET
GA No. 1980 of 2013
APO.T. No. 302 of 2013
W.P.No. 18 of 2013
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SOUMENDU SAHA
Versus
UNION OF INDIA & ORS
BEFORE:
The Hon'ble JUSTICE GIRISH CHANDRA GUPTA
The Hon'ble JUSTICE TARUN KUMAR DAS
Date : 1st August, 2013.
Mr.Ramesh Choudhury, Adv. for the Appellant
Mr.S.B.Saraf, Adv. for the Respondent
The Court : The subject matter of challenge in the writ petition was an order dated 6th November, 2012 passed by the Additional Commissioner of Customs (Port) by which besides confiscating the goods, order was passed directing payment of penalty which in so far as the same is directed against the writ petitioner, reads as follows:
"I impose a penalty of Rs.20,00,000/- (Rupees twenty lakh only) on Shri Soumendu Saha, Asstt. Sales Manager of M/s. AFL Dachser Pvt. Ltd., and Rs.20,00,000/- (Rupees twenty lakh only) on M/s. AFL Dachser Pvt. Ltd. under Section 114(i) of the Customs act, 1962 for their omission and commission in the illegal attempt to export the red sanders wood, an item 2 prohibited for export as per Foreign Trade Policy 2009-14 read with Section 113(d) of the Customs act, 1962."
Aggrieved by the order, the writ petition was presented. The learned Trial Court dismissed the writ petition by the following order:
"The Court: Heard the parties. This Writ Petition is directed inter alia against an order dated 6.11.2012 (Annexure P-8). Learned Counsel points out that the aforesaid order was passed without giving his client an opportunity to cross-examine the Representative of the BSNL. This Court has gone through the order and it appears that in spite of various opportunities, the Petitioner did not disclose as to who was it wanting to cross-examine.
Be that as it may, this Court also notices that in the order itself i.e. in the Order dated 6.11.2012 there is an indication that any person who felt aggrieved may file an Appeal before the Commissioner (Appeals). Under the circumstances, this Writ Petition is disposed of giving liberty to the Petitioner to prefer an Appeal as indicated above".
Aggrieved by the order of dismissal of the writ petition, the appeal was preferred by the writ petitioner. Mr. Choudhury, learned Advocate for the appellant writ petitioner submitted that the learned Trial Court dismissed the writ petition without applying mind to the facts and circumstances of the case. He drew our attention to the following part of the impugned judgment passed by the Customs authorities which reads as follows:
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"Shri Soumendu Saha requested to provide the copies of cross examination of Shri Bikash and Mehta and also requested for permission to cross examine the BSNL officer, who had issued certificate dt. 08-10-10. Rply was sent by Asstt. Commissioner, Adjudication Cell vide letter No.S33- 17/2011 Adjn. Port dt.09-10-12 and provided the copies of record of cross examination. As M/s. AFL Dachser and Shri Soumendu did not name the person to whom they wanted to cross examine in connection with the BSNL certificate, hence they were asked to provide the name. M/s. AFL Dachser and Shri Soumendu did not respond to the letter dt.09-10-12, now it is more than 25 days, hence I have no option but to decide the case, as it is more than 1½ year old case, on the basis of the record available".
Mr. Choudhury submitted that the prosecutor has relied upon the report allegedly submitted by the BSNL. The contents of the report are nothing more than an allegation and could not have been taken into account nor could be treated as evidence unless the contents of the report were proved in accordance with law. He submitted that the report has been relied upon against his client. The report was never proved. His client requested the prosecutor to permit him to cross examine the person who had prepared the report. In reply, his client was told to disclose name of the person, he wanted to cross examine.
Mr. Choudhury submitted that the report was obtained by the prosecutor. Therefore, the prosecutor should know the person who had furnished the report. The writ petitioner could not have known as to who was the author of the report. Therefore, he could not furnish the name of the person, he would like to cross 4 examine. He submitted that it was the obligation of the prosecutor to prove its document. The prosecution did not discharge its burden and the burden was shifted to the writ petitioner. He submitted that his submission is fully corroborated from the aforesaid part of the judgment noticed above. He submitted that the order under challenge is contrary to the rules of fair play and justice. A document was used which was never proved.
Mr. Saraf, learned Advocate appearing for the Customs Department submitted that the writ petitioner had an alternative remedy. He could have preferred an appeal under section 128 of the Customs Act. Mr. Choudhury replied that an appeal could have been preferred, but before such appeal can be preferred, the amount of penalty has to be deposited which his client is not in a position to furnish.
Mr. Saraf submitted that there are provisions for waiver of the penalty under section 129E of the Customs Act. There is, in fact, such a provision, but exercise of that power is in the discretion of the Appellate Authority.
We are convinced that the order passed by the Additional Commissioner of Customs, which was the subject matter of challenge in the writ petition, is bad on the ground of procedural illegality indicated above. Therefore, the order dated 6th November, 2012 is set aside. The matter is remanded back to the Additional Commissioner of Customs. He shall rehear the matter and pass an appropriate order. He shall not rely upon the report of the BSNL unless the same has been proved in accordance with law and an opportunity to cross examine the author of 5 the report has been afforded to the writ petitioner. In case that cannot be done, the report cannot be taken into account in deciding the matter.
The appeal and the application are thus disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(GIRISH CHANDRA GUPTA, J.) (TARUN KUMAR DAS, J.) km AR(CR)