Custom, Excise & Service Tax Tribunal
Shri Sangit Aggarwal vs Commissioner Of Customs (Import), ... on 17 June, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Application No. C/S/1489/09 in Appeal No. C/918/09 (Arising out of Order-in-Original No. 110/2009-CC(Imp)JNCH dated 25.5.2009 passed by the Commissioner of Customs (Import), Nhava Sheva). For approval and signature: Honble Shri Mathew John , Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== Shri Sangit Aggarwal Appellant Vs. Commissioner of Customs (Import), Nhava Sheva Respondent Appearance: Shri Ashok Kumar Singh Advocate for Appellant Shri B.P. Periera JDR for Respondent CORAM: SHRI MATHEW JOHN, MEMBER (TECHNICAL) Date of Hearing: 17.06.2011 Date of Decision: 17.06.2011 ORDER NO. WZB/MUM/2011 Per: Mathew John
In the impugned matter, the main importer was M/s J.V. Industries, which is a proprietorship firm. That firm imported Citric Acid Monohydrate from China by mis-declaring the country of origin as Korea. If such goods were imported from China, anti-dumping duty was applicable. So the Revenue has made out a case against the importer for evasion of customs duty.
2. The appellant in this case is the person, who introduced the said importer to the CHA who handled the documents for the said import. Further, the address of the said importer and the appellant is same. The Revenue had a suspicion that the appellant was the person behind the imports. Shri Janaki Nandan Pandey, Partner of M/s Global Services (CHA) in his statement under Section 108 of the Customs Act, 1962 has stated that Shri Sangit Aggarwal (appellant) is the real owner of the goods imported in the name of M/s J.V. Industries. The appellant did not appear before the customs authority in spite of several summons issued to him. Therefore, the customs department has filed a criminal complaint before the Chief Metropolitan Magistrate for punishing him under Section 174 of Indian Penal Code, 1860 for non-compliance with summons issued to him.
3. The case of the appellant in this appeal is that he was never served a show-cause notice and the relied upon documents. He also has a case that the department agreed that the actual importer was in existence as per the finding recorded in para 34.1 of the impugned order. Further, it is contended that the finding given in para 38.3 is as follows: -
Thus it appears that the said Shri Sangit Aggarwal had misused the Import Export Code (IEC) issued in the name of M/s J.V. Industries and they had knowingly mis-declared the country of origin as Korea to evade payment of appropriate anti-dumping duty.
4. The Advocate submits that penalty cannot be imposed on the basis of such finding when the adjudicating authority himself had not come to a final conclusion. He also points out that the show-cause notice against the main importer has been kept pending because that party has not been traced out.
5. The learned DR, on the other hand, submits that the appellant has not appeared before the department despite several summons issued to him. Since the appellant was avoiding the department, the show-cause notice was not issued. The learned DR contends that the entire conduct of the party during the proceedings shows that he is the actual person behind the impugned import.
6. Considered the arguments on both sides.
7. This is a case where principles of natural justice has been violated inasmuch as show-cause notice and relied upon documents have not been served on the noticee. On receipt of a letter intimating opportunity for personal hearing, the appellant requested through his Advocate for supply of the show-cause notice and relied upon documents and also requested for deferment of the personal hearing. A copy of letter dated 17.12.2008 addressed by the Advocate is submitted. But, the department neither issued any other letter for personal hearing nor supplied show-cause notice and relied upon documents. Further, the appellants claim is that he is an established importer and the department should had no difficulty in serving the show-cause notice. The fact that the appellant did not participate during investigation is not a valid reason for not sending show-cause notice and enclosures to the party. If the appellant is an established importer, the show-cause notice could have been served before adjudicating the matter. At any rate, the adjudication order, without serving show-cause notice and relied upon documents, cannot be sustained. Therefore, I find that there is no reason to keep this case pending in the Tribunal and I find it appropriate to dispose of both, stay petition and the appeal, at this stage.
8. Thus, considering the Order-in-Original is issued without complying with natural justice, I waive the requirement of pre-deposit and take up the appeal itself for hearing and after hearing both sides as recorded above, I have come to the conclusion that the matter is to be remanded back to the adjudicating authority for serving upon the appellant show-cause notice and relied upon documents and giving him reasonable opportunity of hearing before passing a fresh order. Therefore, the impugned order is set aside and the matter is remanded back to the adjudicating authority for adjudicating the matter afresh after complying with the principles of natural justice.
9. Both, the stay application and appeal are disposed of accordingly.
(Dictated and pronounced in Court) (Mathew John) Member (Technical) Vks/ 1