SHIVA SAHU Vs. UNION OF INDIA & ORS

JUDGEMENT

(1.) The petitioner has challenged an order in original dated November 29, 2017 passed by the Commissioner of Customs (Airports and Administration), imposing a penalty of Rs. 1 Crore against the petitioner, under Sections 112(a) and 112(b) of the Customs Act, 1962.

(2.) Learned Advocate appearing for the petitioner has submitted that, although the impugned order is appealable, the writ petition is maintainable inasmuch as, the impugned order is vitiated by breach of the principles of natural justice and that, the adjudicating authority has travelled beyond jurisdiction in imposing the penalty specified. He has submitted that, the petitioner had requested for cross-examination of the accused nos. 1 and 2 in the proceedings. Such opportunity was denied to the petitioner. The petitioner was the accused no. 3. He has referred to the impugned order and has submitted that, the petitioner was absent on May 1, 2017. However, such hearing was fixed for the purpose of allowing the accused nos. 1 and 2, the right of crossexamination. Such hearing was not fixed for the purpose of crossexamination of the accused nos. 1 and 2 by the petitioner. In any event, the accused nos. 1 and 2 did not appear on May 1, 2017. Therefore, the petitioner was denied an opportunity of cross-examination of the accused nos. 1 and He has submitted that, the Advocate for the petitioner had requested the adjudicating authority for further date for cross-examination, subsequent to the hearing dated May 1, 2017. He has referred to the correspondence exchanged in that behalf. He has submitted that, by an application, received by the adjudicating authority on March 29, 2017, the petitioner had asked for an opportunity to crossexamine the accused nos. 1 and The petitioner did not appear on May 1, 2017. The next date for hearing was fixed on July 1, 2017 and such date was intimated by the writing dated June 12, 2017. By a writing dated July 10, 2017 the authorities had shifted the date of hearing on July 12, 2017. By a letter dated July 10, 2017 the Advocate for the petitioner had renewed the claim of the petitioner to cross-examine the witnesses of the prosecution. However, such opportunity was not granted. A hearing was taken on October 23, 2017 when the witnesses of the prosecution were not allowed to be cross-examined by the petitioner.

(3.) Referring to Sections 112 of the Customs Act, 1962 learned Advocate for the petitioner has submitted that, Sub-sections (a) and (b) are disjunctive. Both cannot be applied at the same time. At best, the adjudicating authority could have invoked Section 112(b)(ii) as against the petitioner. Then assuming that to be so, the adjudicating authority could not have imposed a penalty of Rs.1 Crore against the petitioner. The adjudicating authority has, therefore, acted beyond jurisdiction vested upon it by law in doing so. He has sought quashing of the impugned order.