BHARTI BHUTADA Vs. COMMISSIONER OF CUSTOMS (CSI AIRPORT)

JUDGEMENT

(1.) THESE applications seek waiver of pre -deposit and stay of recovery in respect of the penalty amounts. The adjudicating authority imposed penalties of Rs. 25 lakhs, Rs. 1.25 crores, Rs. 50 lakhs respectively on the Appellants in appeal C/639, 640 and 644/09 under Section 114(i) of the Customs Act. The learned Counsel for the Appellants have raised mainly the grievance of negation of natural justice. They have referred to the relevant records and have made an endeavour to show that a reasonable opportunity of being personally heard was not given by the Commissioner before passing the impugned order. It has also been submitted that their claim for cross - examining certain officers of customs and others was rejected without hearing them. It has also been submitted by the counsel for the first two Appellants that those documents, which were seized from their premises by the investigating agency but not relied on in the show -cause notice, were not returned despite repeated requests. We have heard the learned Jt. CDR, in answer to these submissions of the counsel. It is submitted that the Appellants did not co -operate with the adjudicating authority and resorted to dilatory tactics in one way or the other whenever hearing notices were issued to them. According to the learned Jt. CDR, the merits of the case have to be considered to determine whether the Appellants should be directed to make pre -deposits under Section 129 -E of the Act.

(2.) HAVING perused the records and considered the submissions, we are of the view that the adjudicating authority chose to dispose of the case hurriedly without following the principles of natural justice. In this scenario, it may not be desirable to keep the matter pending with the Tribunal. Therefore, after dispensing with pre -deposits, we take up the appeals for final disposal.

(3.) BHUTADAS did not get a third opportunity of being personally heard. In this connection, the learned Jt. CDR has also referred to Section 122A of the Customs Act. This provision was considered by a Co -ordinate Bench of this Tribunal in the case of Jindal Waterways Ltd. v. Commissioner, 2009 (247) E.L.T. 715 The Bench held that maximum three adjournments could be granted to a party by an adjudicating authority and that whether adjournment should be granted or not would entirely depend upon the discretion of the adjudicating authority depending upon the circumstances of the case. The Bench further held that, even after grant of three opportunities, nothing prevented the authority from showing necessary indulgence to the party, if any extreme difficulty was brought on record in the matter of attending the earlier personal hearings. We have found sufficient reason, in the instant case, to hold that the adjudicating authority ought to have given the parties a reasonable opportunity of being heard after supplying of the requisite documents and by extending time for filing reply to the show -cause notice. The position is equally true with regard to the third Appellant. He got three opportunities of being heard viz 16 -12 -08, 5 -3 -09 and 18 -2 -09. On the first date, he sought adjournment. On the second occasion, he did not appear before the Commissioner, nor did he seek any adjournment. On the third occasion, he appeared before the Commissioner but insisted on an opportunity of cross -examining certain witnesses as also of filing a reply to the show -cause notice. The Commissioner granted some time to file a reply to the show -cause notice inasmuch as the party himself offered to file the reply within three weeks but no reply was filed within the agreed time. A reply, however, was filed on 21 -3 -09. In the meanwhile, in a letter dated 17 -3 -09, the Commissioner's office asked the party to file final reply to show -cause notice by 25 -3 -09. Obviously, on 25 -3 -09 the party's reply was on record, the same having been filed on 21 -3 -09. We have seen a copy of this reply, which contains many submissions with regard to the currencies seized from his possession. This letter inter alia insisted on an opportunity to cross -examine witnesses. There was apparently no communication between the Appellant and the Commissioner between 25 -3 -09 and 30 -3 -09, the date on which the order was passed. Natural justice requires that, after the filing of a reply to the show -cause notice, an opportunity of being personally heard be given to the notice. This did not take place in respect of the third Appellant.