V. B. Bansal ( 1 ) HAREN P. Chowksey, petitioner, has filed thiswrit petition under Articles 226 and 227 of the Constitution of India with aprayer to issue a writ of certiorari or any other writ and to set aside theorder passed by the Customs Excise and Gold (Central) Appellate Tribunal,respondent No. 4. ( 2 ) THE Additional Collector of Customs, respondent No. 3, vide orderdated 26. 2. 1991 had imposed a penalty of Rs. 3,00,000. 00 upon the petitionerwhich on appeal was reduced to Rs. l,00,000. 00 by respondent No. 4 videorder dated 8. 9. 1922. ( 3 ) AN information was received by the Directorate of Revenue Intelligence that a German Make Mercedez Benz car bearing Registration No. DBB-782 being used by Shri Shally Thapar, residing at E-30, Greaterkailash-11, New Delhi, was neither legally imported into the country nor wasany duty paid on it at the time of its importation into the country. Detailedenquiries were made which revealed that this car was registered at Delhi onthe basis of a no-objection certificate issued by the Bangalore Regionaltransport Authority and it was further revealed that it was earlier registeredhaving registration No. WME 9290 in the name of one Shri Rupan Roy andthat this aforesaid registration related to a Premier Padmini car and not amercedez Benz car. ( 4 ) ACCORDINGLY, Shri Shally Thapar was summoned and examined,who inter alia disclosed that he was having no documents as regards the legalimportation of the said into India except the registration book. The car wasseized by the Directorate of Intelligence on 6. 1. 1989 under the reasonablebelief that the same was illegally imported into the country and, therefore,liable to confiscation. In his statement, it was disclosed by Shri Shallythapar that this car was purchased by him from Shri Haren P. Chowksey, aresident of Bombay for a sum of Rs. 4,00,000. 00, which was paid in cash andthat in the registration book the name of the earlier owner was written assbri Rupan Roy, but he did not know the said person. It was also statedby him that in his presence the registration papers of the car bearing earlierregistration No. CAU 4352 were handed over by Shri Haren P. Chowksey tosbri Inder Pal Singh @ Palli, who got the same transferred to Delhi. It wasalso claimed by him that he sighed the car transfer form on the basis of whichcar was transferred in his name. It wasalso claimed by him that he sighed the car transfer form on the basis of whichcar was transferred in his name. It was also claimed by Shri Shally Thaparthat he had maintained accounts in which there is a mention about thepayment of Rs. 4,00,000. 00 to Shri Haren P. Chowksey and this amount hasalso been shown by him in his income tax returns. It was further stated byhim on 5. 4. 1989 in his statement under Section 108 of the Customs Act thathe did not have any other document to show that this car was purchased byhim from Shri Haren P. Chowksey. ( 5 ) STATEMENT of Shri Inder Pal Singh @ Palli was also recorded, whohad inter alia stated that he got the registration transferred to Delhi butdeclined to get the ownership changed since proper documents in respect ofthe import of the car were not shown to him. ( 6 ) STATEMENT of Shri Haren P. Chowksey was also recorded undersection 108 of the Customs Act, in which it was inter alia stated by him thathe was carrying on the business of auto consultancy as well as sale-purchaseand hiring of new and second-hand cars on commission basis in Bombay andthat he had only after examination of the car gave opinion to Sbri Shallythapar that it was a good car. which he could purchase. He denied havingsold the car to Shri Shally Thapar or that he was in any connected with itsownership or import. ( 7 ) ALL the facts were considered and show cause notice was issued toshri Rupan Roy, Shri Haren P. Chowksey, petitioner, Shri Shally Thaparand Shri Inder Pal Singh @ Palli. Reply to the show cause notices werefiled by the petitioner and after hearing the Additional Collector of Customsimposed a penalty of Rs. 3,00,000. 00 on the petitioner. The order was challenged by him before the Tribunal, respondent No. 4, wherein the amount ofpenalty was reduced to Rs. 1,50,000. 00. ( 8 ) THE grievance of the petitioner has been that there was no materialwith the Additional Collector of Customs, respondent No. 3, so as to holdthat the petitioner was in possession of the car in question or that it was soldby him and that the penalty of Rs. 1,50,000. 00has been imposed upon himwithout there being any material on record. 1,50,000. 00has been imposed upon himwithout there being any material on record. It has olso been the case ofthe petitioner that the main reliance against the petitioner was upon thetestimony of Shri Shally Thapar, who, in fact, has been an accomplice, as perthe case of the respondent, and no opportunity was given to him to crossexamine the aforesaid Shri Shally Thapar, on account of which the ordercould not be sustained and, thus, this petition. ( 9 ) ANSWER to the show cause notice was not filed by the respondentsand Rule was issued on 26. 2. 1993. No counter affidavit has been filed bythe respondents even thereafter. ( 10 ) I have heard Ms. Sangeeta Nanchahal, learned Counsel for thepetitioner and Shri Rajiv Chopra, learned Counsel for the respondents. 1have also gone through the record. LEARNED Counsel for the petitioner has submitted that the petitionerwas not the registered owner of the car nor was it seized from the petitioner. She has further submitted that no receipt has been produced by Shri Shallythapar so as to show that a sum of Rs. 4,00,000. 00 was paid by him to thepetitioner and that the documentary evidence available with Shri Shallythapar has also not been produced, inasmuch as, as per his own claim, hadmaintained books of accounts and also filed income tax returns, indicatingthat he had purchased the car for a sum of Rs. 4,00,000. 00 from the petitionerand this record has also been withheld. She has further submitted that arequest was made by the petitioner before the Additional Collector ofcustoms for permission to cross-examine Shri Shally Thapar so as tochallenge his claim of having purchased the car from the petitioner, whichwas not allowed and, similarly, this request was not acceded to even by thecustoms, Excise and Gold (Control) Appellate Tribunal, respondent No. 4. She has, thus, submitted that the petitioner has been highly prejudiced onaccount of this refusal and, thus, submitted that the principles of naturaljustice have not been complied with in the instant case on account of whichgrave injustice has been done to the petitioner. A prayer has. therefore, been made that the impugned order should he set aside and the Additionalcollector of Customs be directed to re-henr the matter after giving an opportunity to the petitioner to cross-examine Shri Shally Thapar. A prayer has. therefore, been made that the impugned order should he set aside and the Additionalcollector of Customs be directed to re-henr the matter after giving an opportunity to the petitioner to cross-examine Shri Shally Thapar. ( 11 ) LEARNED Counsel for the respondents has, on the other hand,submitted that there was no necessity of giving an opportunity to the petitioner to cross-examine Shri Shally Thapar in view of the material andevidence already on record. According to him, the petitioner has not deniedthat the car was inspected by him a-nd that earlier also he had sold twoimported cars to Shri Shally Thapar. He has further submitted that Sbri Inderpal Singh @ Palli has also made a statement that he was deputed by thepetitioner for getting the registration of the car transferred from Bangaloreto Delhi and that this evidence, coupled with the statement of Shri Shallythapar. was sufficient for the Additional Collector of Customs as also therespondent No. 4, to come to the conclusion that the car, in fact, was soldby the petitioner, who did not possess any evidence to show that this carwas legally imported into the country. He has, thus, submitted that thepenalty of Rs. 1,50,000. 00 has rightly been imposed on the petitioner andprayed that the writ petition may be dismissed. ( 12 ) THERE can possibly be no dispute that the concept of fair playin action must depend upon the particulars of individual case and if thecredibility of a person who justifies or gives information is in doubt, thestatement has to be tested by way of cross-examination, which is inevitable. It is also well established that principles of natural justice do not require thatthe person who has given information must be examined in the presence ofthe person concerned against whom that statement is to be relied upon. Thematerial in the present case has to be examined keeping in view the afore-said facts. ( 13 ) IT is the admitted case of the parties that the petitioner was not inpossession of this car when it was seized, which, in fact. was seized by thecompetent authority from Shri Shally Thapar. The statement of the petitioner under Section 108 of the Customs Act was recorded in which it wasspecifically pleaded by him that he was not the owner of this car nor was itsold by him to Shri Shally Thapar. was seized by thecompetent authority from Shri Shally Thapar. The statement of the petitioner under Section 108 of the Customs Act was recorded in which it wasspecifically pleaded by him that he was not the owner of this car nor was itsold by him to Shri Shally Thapar. Thus, the onus was on Shri Shallythapar or in any case on the authorities of the Revenue Intelligence tobring cogent and reliable material on record to indicate that, in fact, the carwas in possession of the petitioner and it was be who, in fact, sold it toshri Shally Thapar, having no proof of its valid import into the country. It isalso pertinent to note that the documentary evidence available with Shrishally Thapar was not produced in Court. In these circumstances, the denialof an opportunity to the petitioner to cross-examine Shri Shally Thapar toprove his defence of being not concerned in the import of the car into Indiaor its sale has prejudiced the petitioner and it amounts to denial of theprinciples of natural justice to him, on account of which the impugned ordercannot be sustained. ( 14 ) I am conscious of the fact that it is not necessary that a personmust be permitted to cross-examine an accomplice so as to enable thedepartment to place reliance upon his statement because each case has tobe decided on its own facts. However, in the instant case it is also to benoted that the form regarding giving of information of transfer of ownershipof a vehicle has the name of Shri Shally Thapar, in whose name the car wasto be transferred, but it does not bear the signatures of anyone from whomit was to be transferred in the name of Shri Shally Thapar. There was anaffidavit of one Shri Rupan Roy to the effect that he was the owner of thiscar and it was not on superdari nor was it a stolen car. ( 15 ) IT is, thus, clear that the petitioner has been prejudiced in hisdefence on account of the refusal by the competent authority to permit himto cross-examine Shri Shally Thapar. On this short ground the petitioner isentitled to succeed. ( 16 ) IN view of my aforesaid discussion, the order dated 26. 2. 1991 of the Additional Collector of Customs, Delhi, respondent No. 3 imposing a penalty of Rs. 3,00,000. On this short ground the petitioner isentitled to succeed. ( 16 ) IN view of my aforesaid discussion, the order dated 26. 2. 1991 of the Additional Collector of Customs, Delhi, respondent No. 3 imposing a penalty of Rs. 3,00,000. 00 and the impugned order of Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, respondent No. 4, reducing the amount of penalty to Rs. 1,00,000. 00 on the petitioner are set aside, qua the petitioner. The Additional Collector of Customs may decide the matter after giving opportunity to the petitioner to cross-examine Shri Shally Thapar. Parties to bear their own costs.