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2018 DIGILAW 136 (GUJ)

MESSRS P. A. INTERNATIONAL v. UNION OF INDIA

2018-01-16

A.Y.KOGJE, AKIL KURESHI

body2018
JUDGMENT : AKIL KURESHI, J. 1. The petitioners have challenged an order in original dated 25.04.2017. The case of the petitioners is that there was serious breach of natural justice in conducting the proceedings due to which the petitioners should not be relegated to the appeal route. In particular, the petitioners point out that in the previous round of litigation, the Customs Excise & Service Tax Appellate Tribunal ('CESTAT' for short) had given certain directions to the departmental authorities to bring relevant documents on record and to proceed further. While passing fresh order, the adjudicating authority committed two errors. Firstly, it recorded that the petitioners had not brought such documents on record which was not the duty of the petitioners to do and secondly, even proper hearing was not granted. 2. In the context of the requirement to bring additional documents on record as suggested by CESTAT, by order dated 26.12.2017 we had made following observations: “Having heard the learned advocates for the parties for sometime, we notice that in earlier round of litigation, CESTAT by its judgment dated 8.1.2017, had remanded the proceedings primarily on the ground that certain vital documents should be brought on record and on the basis of such documents, proper findings can be arrived at. Relevant portion of this judgment reads as under : “Further perusal of the record in the appeals filed by the exporters, it is noticed that both the ld. Member (T) and ld. Member (J) are silent on certain important issues, which would not make the remand order, otherwise effective. The entire case of the revenues based (a) on the copies of documents issued there under (b) copies of Port Trust Shipping Bills dated 30.03.1994 recovered from office of the CHA bearing the vessel names as “Orient Challenger” (c) Examination Register, What is observed is that, the impugned order ignored and do not make any appreciation in respect of RBI General Repatriation Form (GR Form) and Part “F” of the Advance License. The documents i.e. Government Resolution Form which after export submitted to the Customs Department and thereafter lying with the RBI would appears to be vital documents to bring home charges against the exporters/or to absolve them. These documents have to be brought on record and a finding is to be arrived at after hearing the submissions of exporters. The documents i.e. Government Resolution Form which after export submitted to the Customs Department and thereafter lying with the RBI would appears to be vital documents to bring home charges against the exporters/or to absolve them. These documents have to be brought on record and a finding is to be arrived at after hearing the submissions of exporters. The case law cited in respect of them by the exporters shall be considered by the adjudicator as to their applicability and implication.” Upon remand, the Commissioner of Customs (Kandla) acting as adjudicating authority passed a fresh order of adjudication without these documents on record. The stand of the department appears to be two fold. One is that the Customs department had written to DRI, Mumbai for supplying such documents. However, the documents were not supplied. Second is that it was the duty of the noticees to produce such documents. Be that as it may, the proceedings were decided without such documents being brought on record. Learned counsel for the petitioners submitted that subsequently when the petitioners applied directly to DRI, Mumbai, in case of petitioner no.2, such documents have been supplied. Judgment of the Tribunal in which abovenoted directions have been given has become final and not challenged by the department. In that view of the matter, it was necessary for the department to carry out such directions. Merely stating that the Customs Kandla had written to DRI Mumbai but the documents were not supplied is not good enough. Both the organisations work under the Union of India. One wing of Union of India cannot take up a plea that since the other wing has not supplied the documents, it is not possible to carry out the directions issued by the Tribunal. If the case of the department is that due to passage of time or for any other reason, such documents are not available or traceable, no such case is putforth. In any case, the department cannot contend that it is the duty of the petitioners to produce such documents on record. Under the circumstances, the respondents shall file additional affidavit stating whether such documents are still available with DRI Mumbai or any other authority of Union of India. In any case, the department cannot contend that it is the duty of the petitioners to produce such documents on record. Under the circumstances, the respondents shall file additional affidavit stating whether such documents are still available with DRI Mumbai or any other authority of Union of India. Our query is not whether the Customs department is in possession of such documents or not, our query is whether Union of India possess such documents which shall be so stated in such affidavit. SO to 16.1.2018.” 3. In response to such order, respondent no.3 Deputy Commissioner of Customs, Kandla has filed an affidavit dated 12.01.2018. Relevant portion of which reads as under: “It is submitted that RBI GR Form is not available with the department or DRI Mumbai. It is further submitted that the other documents i.e. “Part F of the Advance Licenses” DEEC Book Nos 137173 and 134131 in respect of M/s. PA International and M/s. Blend Syntec (Petitioner 1 and Petitioner 3) is available on records. The copy of the same is enclosed herewith as Annexure “A”. Whereas Part F of the DEEC Book No. 122530 and 122532 in respect of M/s. Sharan exports and M/s. Santosh Textiles (Petitioner 2 and Petitioner 4) are not available. ” 4. The stand of the department emerging from such affidavit thus is that certain documents are not available, the rest are already on record. If the case of the petitioners is that they are in possession of copies of any of the additional documents, though the department contends that the same are not available, it would be open for the petitioners to produce the same before the adjudicating authority. In any case, the order in original must go paving way for fresh adjudication. 5. Under the circumstances, impugned order dated 25.04.2017 is set aside. The adjudicating authority shall proceed afresh after enabling the petitioners to produce additional documents if they so desire and also give opportunity to participate in the proceedings and make submissions. The contentions of the petitioners regarding non-availability of documents including raising of adverse inference against the department are kept open. This is without prejudice to the petitioners' request for transfer of the show cause notice proceedings before the Commissioner, Mumbai, for which a petition is pending before the CBEC. 6. Petition stands disposed of accordingly. Notice is discharged.