DILIPBHAI LUDWANI Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, I find that this is a fit case to be finally disposed ,of at this stage. Accordingly, I allow the present application and proceed to deal with the appeal.

(2.) THE appellants are one Shri Dev Shankar Sharma, one Shri Dilip Bhai Ludwani and one Shri Keshav Kumar Nachani. Penalties of Rs. 1 lakh, Rs. 1 lakh and Rs. 10,000/ - have been imposed on them by the Commissioner under Sections 112 and 117 of the Customs Act, respectively. 24 gold biscuits of foreign markings have been absolutely confiscated by the Commissioner under Section 126 of Act. Among the three appellants Shri Keshav Kumar Nachani claims to be owner of the confiscated gold biscuits and is challenging the absolute confiscation of the goods. All the three appellants are challenging the penalties on one or the other ground. There is a common ground for all the appellants. The Commissioner has passed the order in violation of the principles of natural justice. This ground has been projected before me today by the appellants' Counsel. He submits that the adjudicating authority had fixed the matter originally for 5th March, 2002 for personal hearing. That notice of hearing was, allegedly, received by the appellants only some time after 5 -3 -2002. On 11 -3 -2002, the appellants' Counsel sent a telegraphic request to the Commissioner for adjournment of hearing. That telegram (copy available on record) reads thus "C No. VIII/10(41) -CVS/SEIZ/GB/AGRA, 2001/1456 could not be attended on 5 -3 -2002 for personal hearing due to present tense situation and riots please give another date except 21st/22nd March, Kiran Jani, Advocate". On 11 -3 -2002, a notice of hearing was issued from the office of the Commissioner and sent by speed post to the appellants' Counsel, intimating the date of next hearing as 19 -3 -2002. This notice was, allegedly, received by the Advocate only on 22 -3 -02. On 22 -3 -02, the Advocate sent another telegram (copy available on record) to the Commissioner, which reads thus "due to riots delay in post I am not able to attend personal hearing C. No. VIII/10/41 -CUS/SEIZ/08/AGRA/1456. Kindly keep it on third week of April, please positively K.R. Jani, Advocate", Nothing was heard from the Commissioner thereafter. The appellants' Advocate received the impugned order of the Commissioner on 12 -7 -2002. That was an order dated Nil, not signed by the Commissioner. The order, however, carries an endorsement of the Supdt. (Customs), dated 9 -7 -02, which is obviously an endorsement of despatch of copies of the order to the Chief Commissioner and others.

(3.) THE above facts are not in dispute. The facts require to be examined in the back drop of the infamous riots in Gujarat. All the telegraphic and other correspondence between the Commissioner and the appellants' Advocate were obviously hampered by the Gujarat situation. It was apparently for reasons beyond the control of the appellants and their Advocate that they could not attend the hearing fixed by the Commissioner. It is pertinent to note that the Advocate had specifically requested the Commissioner (in his telegram dated 11 -3 -02) to avoid 21st and 22nd March, 2002 while fixing the date of hearing. The Commissioner, however, wanted to hear the matter right on 22 -3 -02 itself. It is, further, curious to note that there was no attempt on the part of the adjudicating authority for granting another opportunity of personal hearing to the appellants or their advocate during the long interregnum of four months between the last date of hearing and the date of the order. Gross violation of the principles of natural justice is thus manifest in this case. I set aside the impugned order and direct the Commissioner to pass fresh speaking order after affording a reasonable opportunity of being heard, to the appellants. It is made clear that the order to be issued to the parties and/or their Advocate shall be duly signed by the Commissioner.