S VARADHARAJAN Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Cma(Md)No.649 of 2018 is filed challenging the Final Order No.40333/2018, dated 05.02.2018 of the Customs, Excise and Service Tax Appellate Tribunal, Chennai. CMA(MD)No.650 of 2018 is filed against the Final Order No.40084/2016, dated 10.01.2016 by the Customs, Excise and Service Tax Appellate Tribunal, Chennai.

(2.) As the scope of these appeals is on a limited purpose, we are not adverting to various facts and circumstances narrated in the grounds of appeal, except to state certain relevant facts, as projected by the appellants, which are necessary for disposal of these appeals.

(3.) The appellant Company is engaged in the manufacture of copper products. Its finished goods are exported. The appellants had been issued advance licenses for the import of copper concentrate, by the Director General, Foreign Trade. In the year 2010, the Central Excise Authorities initiated investigation against the Company on the presumption that it had violated the conditions of the advance licenses. Several statements of its personnel were recorded by the officials of the Central Excise Department from time to time. By letter dated 21.06.2016, the Company informed the Central Excise Authorities that their computation suffered from infirmities and was premised on assumptions and presumptions. A draft show-cause notice has been prepared by the Central Excise authorities and forwarded to the office of the first respondent. Customs authorities, on perusal of the draft show-cause notice, did not agree with the allegation of misuse of advance license. However, the Central Excise authorities were still of the view that a show-cause notice was required to be issued to the Company. Hence, the appellant filed writ petition(MD)No.434 of 2015 before this Court to refrain the respondent from issuing the show cause notice. While the said writ petition was pending, the first respondent issued a Show Cause Notice No.12 of 2015 dated 13.01.2015 alleging misuse of the advance authorization scheme in respect of copper concentrate imported against the said licenses between Feb. 2005 and May 2010. The said show cause notice proposed to demand customs duty to the tune of Rs.3,99,60,57,592.00 along with interest and further proposed to impose penalty also apart from proposing to confiscate the quantity of 77,214.034 MT of Copper. Consequent upon issuance of the said show cause notice, W.P(MD)No.434 of 2015 was withdrawn as having become infructuous. Another writ petition in W.P(MD)No.626 of 2015 was filed challenging the said show cause notice dated 13.01.2015. The Writ Court posted the writ petition along with a connected W.A(MD)No.705 of 2011 pending before the Division Bench of this Court, wherein a challenge was made on the very jurisdiction of the Central Excise Officers to conduct the investigation on the alleged customs offence. By common order dated 01.08.2018, both W.P(MD)No.626 of 2015 and W.A(MD)No.705 of 2011 were disposed of against the appellants. Special Leave Petition in SLP Nos.25142-25143/2016 was filed before the Apex Court. On 05.09.2016, the Apex Court issued notice on the SPL. Thereafter, on 21.04.2017, the Apex Court ordered that the Commissioner of Customs, Tuticorin may pass a final order and keep it in a sealed cover with further direction to list the matter in the normal course. In pursuant to the above direction of the Apex Court, the appellants were called upon by the first respondent on 05.09.2017 for personal hearing. During the course of hearing, the appellants sought for an opportunity to cross-examine the witnesses. They also sought for furnishing copies of the entire chain of correspondences between the Customs and Central Excise Department. By an order in original dated 29.09.2017, the first respondent rejected both the requests. Challenging the said order, the appellant preferred appeal before the CESTAT. The appellate Tribunal by way of an order passed dated 10.01.2018 acceded to the request made by the appellant for permitting cross- examination of the witnesses/deponents. However, as regards the request for furnishing the entire chain of correspondence exchanged between the Customs and Central Excise authorities, the Tribunal upheld the order of the first respondent and rejected the said request. Thus, both the appeals were filed before this Court by raising the following substantial questions of law:-