Madras High Court
Shri.M.Mayandi vs The Commissioner Of Customs on 30 September, 2022
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.Nos.21663 and 22355 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 30.09.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.Nos.21663 and 22355 of 2019
and WMP Nos.20882 and 21670 of 2019
Shri.M.Mayandi
... Petitioner in W.P.No.21663 of 2019
Shri.M.Sudalaimuthu
... Petitioner in W.P.No.22355 of 2019
Vs
The Commissioner of Customs,
Chennai – VIII,
Custom House, No.60, Rajaji Salai,
Chennai – 600 001.
... Respondent in both W.Ps.
COMMON 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.68868/2019, Job No.67867/2019,
F.No.CAU/DRI/CHE/ 13/2017-CH-IV/AM-VII, dated 15.05.2019, on the file
of the respondent and quash the same, in so far as both the petitioners are
concerned.
In both W.Ps
For Petitioner : Mr.A.K.Jayaraj
For Respondents : Mr.A.P.Srinivas
Senior Standing Counsel
https://www.mhc.tn.gov.in/judis
W.P.Nos.21663 and 22355 of 2019
COMMON ORDER
Read this order in conjunction with order dated 12.07.2022 that reads as follows:
Heard, Mr.Subash, learned Counsel for the Petitioner, Mr.A.P.Srinivas, learned Senior Standing Counsel for the respondent in W.P.No.21663 of 2019 and Mr.K.Mohan Murali, learned Senior Panel Counsel, learned Senior Panel Counsel for the respondent in W.P.No.22355 of 2019.
2. The challenge is to an order in original that addresses allegations as against several asseeses including the petitioner who are noticees No.5 & 6 in the impugned order. The order is, in itself very detailed and proceeds on the basis of alleged smuggling of imported cigarettes. As far as the present two petitions are concerned, the periods in question cover 2015 and 2016 and admittedly, the role of the present petitioners is restricted to the use of their import-export code qua the transactions of the year 2016.
3. The order however, also brings within its ambit, past transactions, of the year 2015 as well, and hence proceedings have been initiated for consignments cleared in the past in terms of Sections 111(d), 111(f), 111(i), 111(m) of The Customs Act, 1962 (in short 'Act') read with Section 14 of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement on Regulation of Trade and Commerce Production Supply and Distribution) Act, https://www.mhc.tn.gov.in/judis W.P.Nos.21663 and 22355 of 2019 2003 (in short 'COPTA, 2003'), as well as Section 15 of The Foreign Trade (Development and Regulation) Act, 1992 (in short 'Act').
4. The order clarifies that the consignments were not available for confiscation but have been declared as goods liable for confiscation. Thus penalties in terms of Section 112 (a) and Section 114 AA of the Act, have been imposed in respect of the contraventions alleged in the previous consignments.
5. Without going into the deficiencies that are stated to arise in the impugned order, it would suffice that I advert to one argument that appeals. The petitioner had sought an opportunity to cross-examine to person/entities based on which the impugned order has come to be passed.
6. The petitioner has, on various dates including on 22.11.2017 in the course of personal hearing, requested that the statements of those persons/entities upon which reliance was placed in the show cause notice be supplied & and an opportunity granted to cross-examine them. In letter filed on 22.11.2017, the Counsel of the Petitioner, points out that despite a specific request, the persons concerned, were not made available for cross- examination. Since the entirety of the proceedings are based upon their statements the petitioner would maintain that such cross-examination was vital to its case. This request has been reiterated on 08.01.2019 as well. https://www.mhc.tn.gov.in/judis W.P.Nos.21663 and 22355 of 2019
7. There is no dispute on the position that the request for crossexamination has not missed the attention of the respondents as there is reference to the same in the impugned order. However, the request has been brushed aside on the ground that other circumstances, make it very clear that the petitioners are guilty of the offences alleged against them.
8. In my view and seeing as the bulk of the order refers to and relies upon the statements of various persons to buttress the conclusion of the Officer, adverse to the petitioner, it was incumbent upon the authorities to provide an opportunity to the petitioners to cross-examine those persons/entities. For this purpose without setting aside the impugned order the respondents are directed to issue notice to the persons/entities whose statements are relied upon in the impugned order, call them on a particular date to appear for cross-examination, and file a report in this regard.
9.The conclusion arrived at in the report as would have a bearing on the conclusions in the impugned assessment. For this purpose a period of eight (8) weeks is granted, starting today.
10. List on 12.09.2022.
2. On 12.09.2022, the Court had recorded that there was no compliance of order dated 12.07.2022. The petitioner had, in the meanwhile, reiterated the request for cross-examination on 27.07.2022 enclosing a copy of the order of https://www.mhc.tn.gov.in/judis W.P.Nos.21663 and 22355 of 2019 this Court dated 12.07.2022, inspite of which there had been no positive response from the respondents. Mr.Mohanamurali, learned Senior Panel counsel had sought a final opportunity to comply with order dated 12.07.2022, that was granted on 12.09.2022.
3. The events repeated themselves on 19.09.2022 when, at request of learned Senior Standing Counsels, yet another extension of time had been granted and the matter listed today for compliance.
4. Today, when the matter is called, learned Senior Standing Counsel would still submit that there has yet, been no opportunity for cross examination that has been provided. That apart, no effort has also been made by the respondents, to call upon the parties to afford an opportunity as directed. To be noted, order dated 12.07.2022 has attained finality and hence, it was incumbent upon the respondents to have complied with the same.
5. The premise of order dated 12.07.2022 is that both the impugned orders dated 15.05.2019 have been passed without any opportunity for cross- examination having been afforded to the petitioners, which is in violation of principles of natural justice. It is admitted by the respondents that there has been no opportunity granted for cross-examination and order passed on 12.07.2022 was after a detailed hearing of both sides. I thus reiterate the https://www.mhc.tn.gov.in/judis W.P.Nos.21663 and 22355 of 2019 DR.ANITA SUMANTH,J.
contents of that order and set aside the impugned orders-in-original dated 15.05.2019, assailed in these Writ Petitions.
6. Allowed with no order as to costs. Connected Miscellaneous Petitions are closed.
30.09.2022 Sl Index : Yes / No Speaking Order / Non Speaking Order To The Commissioner of Customs, Chennai – VIII, Custom House, No.60, Rajaji Salai, Chennai – 600 001.
W.P.Nos.21663 and 22355 of 2019 and WMP Nos.20882 and 21670 of 2019 https://www.mhc.tn.gov.in/judis