JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned Senior Advocate Mr.Mihir Joshi assisted by learned advocates Mr.Hardik Modh and Mr. Amit Laddha, learned Senior Advocate Mr.Mihir Thakore for learned advocate Ms. Khyati Chugh, learned advocate Mr.Arjun Joshi, learned advocate Mr.Dhaval Shah and learned advocate Mr.Malay Dange for the petitioners of the respective petitions and learned advocate Mr. Siddharth Dave for respondent No.2. 2. These group of petitions are filed challenging the Order-in-original dated 29.11.2021 passed by the respondent No.2- Principal Commissioner of Customs, Ahmedabad as the petitioners are co- noticee, these petitions are heard analogously and are being disposed of by this common judgement and order. 3. Issue Rule returnable forthwith. Learned advocates for the respective respondents waive service of notice of rule. 4. For the sake of convenience, Special Civil Application No.5090 of 2022 is treated as the lead matter. 5. The brief facts of the case of the petitioner of Special Civil Application No. 5090 of 2022 are as under: 5.1 The petitioner-Shri Promodgiri Premgiri Goswami and his brother Dilipgiri Premgiri Goswami started a proprietary business of silver in the name of M/s. Darshan Silver in the year 1994-95. The Proprietary firm was thereafter converted into partnership firm in the year 2003-04 and partnership firm was later on converted into Private Limited Company in the year 2009 in the name incorporated as M/s. Dashrath Silver Pvt. Ltd. 5.2 The petitioner was the Director of the Private Limited Company till 30.06.2020. The company was manufacturing silver jewellery out of silver bar purchased from the domestic market. 5.3 On 04.06.2019, the Officer of Airport Intelligence Unit [‘AIU’ for short] found one Shri Jigneshkumar Govindbhai Sevalia, Assistant Duty Officer of M/s. Globe Ground India Pvt. Ltd behaving in a suspicious manner with passenger in the Aerobridge of Bay No. 32 by Ms. Rekha Sharma, Airport Operations Manager, Globe Ground India Pvt Ltd (GGI), Ahmedabad to who informed that Shri Jagdish Savaliya was found in possession of one bar of yellow metal and therefore he was required to be frisked and checked by the Custom Officers. The AIU officers recorded search proceedings of under Panchnama dated 04.06.2009 and asked Shri Jagdisbhai whether he wanted to be checked in front of executive Magistrate or Superintendent of Customs and he replied giving his consent to be searched in front of Superintendent of Customs. The AIU officers recorded search proceedings of under Panchnama dated 04.06.2009 and asked Shri Jagdisbhai whether he wanted to be checked in front of executive Magistrate or Superintendent of Customs and he replied giving his consent to be searched in front of Superintendent of Customs. Thereafter, Shri Jigneshbhai Savaliya was asked to remove all metallic items worn by him or carried by him in person, since he was found carrying in his hand a cargo document pouch and on enquiry by the officers, he unwrapped the cargo document pouch and the officers found a brown coloured packet concealed within. The officers conducted personal search of Shri Jigneshbhai Savaliya and found him to be carrying on nine brown coloured packets in his blazer and waist coat worn by him and were not sealed. 5.4 Thereafter, the Officers placed nine brown coloured packets recovered from Shri Jigneshbhai Savaliya and the same was scanned using the baggage scanning machine installed in the arrival hall of Terminal 2 of SVPI Airport Ahmedabad. The officers opened the packets and found the same containing 47 yellow Gold bars; 22 pieces each of 1 kg and 25 pieces each of 100 gms; which were thereafter tested by the Government Approved Valuer and the same was determined at Rs. 8,20,75,000/- in a market value and Rs. 7,18,18,810/- being the tariff value. The God bars were seized by the Officer under panchana dated 04.06.2019. It appears from the proceedings that Shri Jigneshbhai Savaliya in his statement admitted that the said gold bars were given to him by passenger named Shri Lokesh Sharma at Aerobridge of Bay No. 32 and he was supposed to handover the said gold bars to Shri Rutugna Trivedi outside the Airport terminal. 5.5 Shri Jigneshbhai Savaliya also informed that Shri Lokesh Sharma exited the Airport Terminal and upon instructions of the Officers of AIU, Shri Jignesh Savaliya called Shri Lokesh Sharma at Gate No. 5. Upon physical search of Shri Lokesh Sharma and examination of his baggage was also carried out but nothing incriminating was found. 5.6 It appears from the record that during the checking of the black coloured trolley bag carried by Shri Lokesh Sharma, the business card of Shri Rutugna Trivedi was found. Upon physical search of Shri Lokesh Sharma and examination of his baggage was also carried out but nothing incriminating was found. 5.6 It appears from the record that during the checking of the black coloured trolley bag carried by Shri Lokesh Sharma, the business card of Shri Rutugna Trivedi was found. In the sate of Shri Lokesh Sharma it is recorded that nine brown coloured packets containing gold bars were handed over to him in the duty free area of Dubai Airport by Smt Hina Rutugna Trivedi, wife of Shri Rutugna Trivedi. 5.7 The Customs Officers thereafter carried out searches at the residential and office/business premises of Shri Jignesh Savaliya, Shri Rutugna Trivedi, Shri Lokesh Sharma, M/s. Akhandjyot Eclat Pvt. Ltd and M/s. Akhandjyot Jewels LLP. 5.8 During the search of residential premises of Shri Jignesh Savaliya, some incriminating documents and evidence were recovered by AIU on 04.06.2019. Shri Jignesh Savaliya in his statement stated that he smuggled gold into India brought by different persons from 2014 to 2018 and admitted that seized gold bars belong to Shri Rutugna Trivedi and from that he was being paid for such smuggling of gold bars. 5.9 In the statement Shri Lokesh Sharma he has also stated on similar lines as that of Shri Jignesh Savaliya. 5.10 The Officers of AIU thereafter carried out searches at various places including the residential premises of Ms. Nita Parmar and Shri Mehul Bhimani and during the course of search of residential premises of Ms. Nita Parmar, three pen drives were recovered and data was retrieved and thereafter, investigation was initiated on the basis of the details contained in the pen drives. 5.11 It appears that names of Shri Jitendra Rokad and Shri Mehul Bhimani were reflected in the pen drives showing distribution of profit within Shri Rutugna Trivedi, Shri Jitendra Rokad and Shri Mehul Bhimani. The Officers of AIU thereafter searched the residential premises of Shri Mehul Bhimani and took him into the custody and during the course of investigation, they were questioned about the entry of interest being reflected in one of the documents in names of the petitioner. 5.12 The Officers of AIU also recovered pen drives from the residential premises of Ms. The Officers of AIU thereafter searched the residential premises of Shri Mehul Bhimani and took him into the custody and during the course of investigation, they were questioned about the entry of interest being reflected in one of the documents in names of the petitioner. 5.12 The Officers of AIU also recovered pen drives from the residential premises of Ms. Nita Parkar during the search on 08.06.2019 and 26.06.2019 which contained the details of smuggling of gold into India along with incriminating documents in the name of the petitioner, statements of the petitioner were also recorded on 24.09.2019 and 25.09.2019. 5.13 The petitioner was thereafter arrested after recording his statement, the petitioner retracted the statement on 27.09.2019 on the first available opportunity. 5.14 The petitioner was thereafter released on default bail. 5.15 Investigation initiated by the AIU was culminated into show cause notice dated 24.12.2019 calling upon the petitioner to show cause as to why 4886.206 kgs of gold smuggled into India from 07.03.2013 to 26.05.2019 should not be liable for confiscation under the provisions of the Customs Act,1962 (for short ‘the Act’) along with penalty under section 112(a) and 112(b0 and 114AA read with section 123 of the Act. The petitioner filed interim reply to the show cause notice on 14.03.2020 contending that the statement recorded on 24.09.2019 and 26.09.2019 were under coercion and threat of arrest. 5.16 Personal hearing on the show cause notice was scheduled on 17.06.2021 and advocate for the petitioner requested for cross-examination of Ms. Nita Parmar and Mr. Rutugna Trivedi on the ground that the entire evidence case has been booked on the basis of the statements of Ms. Nita Parmar and Mr. Rutugna Trivedi apart from the documents ceized from.. premises and the copy of the same was not served upon the petitioner. 5.17 Thereafter, the personal hearing was re-scheduled on 12.10.2021 and the learned advocate for the petitioner reiterated request for cross examination of Ms. Nita Parmar and Mr. Rutugna Trivedi as well as the requested to supply relied upon documents (RUD) and letter was also filed on the same day specifying documents which are relied on in the show cause notice but copies were not supplied or provided to the petitioner. 5.18 The petitioner thereafter by another letter dated 30.11.2021 reiterated the request to provide certain relied upon documents and requested to provide opportunity of cross examination of co- accused Ms. 5.18 The petitioner thereafter by another letter dated 30.11.2021 reiterated the request to provide certain relied upon documents and requested to provide opportunity of cross examination of co- accused Ms. Nita Parmar and Mr. Rutugna Trivedi. 5.19 Respondent No.2 thereafter passed the Order-in-Original dated 29.11.2021 confirming the show cause notice dated 24.12.2019 imposing penalty of Rs. 51,15,00,000/- in terms of the provisions of section 112(b)(i) of the Act for indulging in financing 731.705 kg of smuggled gold valued at Rs. 204,60,19,504/-. The respondent No.2, however, did not impose penalty under section 112(a) and 114AA of the Act. 5.20 Being aggrieved and dissatisfied with the Order-in-Original dated 29.11.2021, the petitioner has preferred this petition with the following prayers: (a) That this Hon’ble Court be pleased to issue a Writ of Certiorari, or Writ in the nature of Certiorari, or any other appropriate writ, order or direction, calling for the papers and proceedings leading to the records relating to Order-in- original No. AHM-CUSTM-000-COM-015-016-21-22 dated 29.11.2021 passed by Respondent No.2 and after looking into the same and the legality thereof, this Hon’ble Court be pleased to quash and set aside the Order-in-Original No. AHM-CUSTM-000- COM-015-016-21-22 dated 29.11.2021 by respondent No.2 (Annexure-I); B. That this Hon’ble Court may be pleased to issue a writ of Mandamus, or a writ in the nature of Mandamus, or any other appropriate writ, order or direction to the Respondent No.2 to pass fresh Order-in-original after supplying the copies of Relied Upon Documents and providing an opportunity of cross examination of co-accused viz. Ms. Nita Parmar and Shri Rutugna Trivedi; C. That pending the hearing and final disposal of the present petition, this Hon’ble Court be pleased to direct the respondents, their servants, agents, officers and subordinate, restricts them from acting on or in consequence to the impugned Order-in-Original No. AHM- CUSTM-000-COM-015-016-21-22 dated 29.11.2021 passed by Respondent No.2 (Annexure-I) and stay the operation and implementation of the impugned Order-in-Original No. AHM-CUSTM-000-COM-015-016-21-22 dated 29.11.2021 passed by Respondent No.2 (Annexure- I); d. for ad interim relief in terms of prayer (c) above. e. for costs of the petition be provided; and f. for such further and other reliefs, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 6. e. for costs of the petition be provided; and f. for such further and other reliefs, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 6. Learned Senior Advocate Mr.Mihir Joshi with learned advocate Mr.Hardik Modh for the petitioner submitted that the petitioner has challenged the Order-in- original dated 29.11.2021 passed by the respondent No.2 imposing penalty on the petitioner without availing the alternative efficacious remedy on the principal ground that the same is in breach of the principle of natural justice as the respondent No.2 did not provide an opportunity to cross-examine the witnesses and co-noticees as requested by the petitioner from time-to-time under Article 226 of the Constitution of India. Reliance was placed on the decision of the Hon’ble Apex Court in case of Radhakrishna Industries Vs. State of Himachal Pradesh reported in (2021) 6 SCC 771 . 7. Learned Senior Advocate Mr. Joshi further submitted that the respondent No.2 also did not provide the relied upon documents(RUD) to the petitioner in spite of requesting the same from time-to-time by various communications after the show-cause notice was issued by the respondent No.2. 8. It was submitted that the show-cause notice was issued on 24.12.2019 wherein, the reference was made to the documents seized from the premises of co-noticee Ms. Nita Parmar. It was pointed out that despite reference to such documents, the same were not provided nor annexed with the show-cause notice but the petitioner was asked only to take the inspection of such documents which is insufficient compliance to the principle of natural justice. In support of his submissions, reliance was placed on the following decisions: M.G.M. Metalisers Ltd vs. Union of India reported in 2018 (10) G.S.T.L. 537 (Guj.); PGO Processors Private Limited vs. CCE, 2000 (122) E.L.T. 26(Raj.); Subodh Kumar Chhajer vs. Union of India reported in 2016(331) E.L.T. 559 (Cal.). 9. The petitioner thereafter vide letter dated 12.10.2021 requested to provide the documents relied upon in the show-cause notice for the purpose of filing additional reply. It was submitted that however, no documents were supplied and no further date of hearing was given and thereafter, the petitioner received the impugned order dated 29.11.2021 which is in flagrant breach of principle of natural justice as the petitioner was not even called for making submission after the application dated 12.10.2021 filed by the petitioner. 10. It was submitted that however, no documents were supplied and no further date of hearing was given and thereafter, the petitioner received the impugned order dated 29.11.2021 which is in flagrant breach of principle of natural justice as the petitioner was not even called for making submission after the application dated 12.10.2021 filed by the petitioner. 10. Learned Senior Advocate Mr. Joshi submitted that the impugned order though record in para 130.7 that petitioner was informed for supply of the relied upon documents by letter dated 12.10.2021 and that all the relied upon documents had been supplied to the petitioner along with the show-cause notice. The Counsel of the petitioner was informed to get the documents collected from the Superintendent A.I.O. and the contact number of the concerned person was given vide letter dated 20.10.2021. However, no documents have been collected so far. It was submitted that no such letter dated 20.10.2021 was received by the petitioner and specific assertion in this behalf has made by the petitioner at page 18 of the memo of petition which is not denied by the respondent. It was also pointed out that such letter was placed on record with affidavit handed over to this Court without any proof of dispatch or receipt. 11. It was submitted that on perusal of the impugned order, the findings arrived at by the respondent No.2 relying upon the data retrieved from the pen-drive which were never supplied to the petitioner at all. In support of such submissions that there was a breach of the principles of natural justice, learned Senior Advocate Mr. Joshi referred to and relied upon the following decisions: Commissioner of Central Excise & Customs vs. Chandan Steel Ltd reported in 2009 (238) E.L.T. 716 (Guj.); Kothari Filaments vs. Commissioner of Cus. (port) Kolkata, reported in 2009 (233) E.L.T. 289 (S.C.); Tushar Thakkar vs. Union of India reported in 1980 (4) SCC 499 ; Rajputana Stainless Ltd vs. Union of India reported in 2021 (12) TMI 180. 12. It was further submitted that no opportunity for cross-examination was granted by the respondent No.2 in spite of the request was made for cross-examining of co-noticees Ms. Nita Parmar and Ms. Rutugna Trivedi though the data recovered from Ms. Nita Parmar and statements of both the persons were relied upon for the purpose of implicating the petitioner. 12. It was further submitted that no opportunity for cross-examination was granted by the respondent No.2 in spite of the request was made for cross-examining of co-noticees Ms. Nita Parmar and Ms. Rutugna Trivedi though the data recovered from Ms. Nita Parmar and statements of both the persons were relied upon for the purpose of implicating the petitioner. It was therefore submitted that there was a clear breach of principles of natural justice on the part of respondent No.2. 13. Learned Senior Advocate Mr. Joshi referred to the show-cause notice dated 24.12.2019 and reply dated 14.03.2021 of the petitioner seeking cross-examination and further request by letter dated 17.06.2021. It was also submitted that during the personal hearing on 12.10.2021, the petitioner requested for an opportunity of cross-examination of the aforesaid two persons. It was pointed out that however, without referring to the same, the respondent No.2, in the impugned order in para 130.6, unilaterally held that neither Ms. Nita Parmar nor Mr. Rutugna Trivedi have tendered statements which implicates the petitioner and in such circumstances, and in absence of no reason being attributed by the petitioner for seeking cross-examination of the said two persons and in view of the discussion in paras 119.25.1 to 119.25.5, the request for cross-examination was rejected. It was therefore, submitted that what has been stated for the purpose of rejecting the request for cross- examination, the respondent No.2 has relied upon the statements of both Ms. Nita Parmar and Mr. Rutugna Trivedi for the purpose of implicating the petitioner and despite their cross- examination was denied, which is clear breach of principle of natural justice. 14. In support of his submissions, reliance was placed on the following decisions: Gyscoal Alloys Ltd vs. Union of India reported in 2023 (384) ELT 265 (Guj.); Dharampal Satyapal Ltd vs. Dy. Commissioner of C.Ex., Gauhati reported in 2015 (320) E.L.T. 3 (S.C.); Sameer Shah (Real Name “Javed Shaikh”) vs. Union of India and anr reported in 2022 (6) TMI 534; Andaman Timber Industries vs. CCE, 2016(15) SCC 785. 15. Commissioner of C.Ex., Gauhati reported in 2015 (320) E.L.T. 3 (S.C.); Sameer Shah (Real Name “Javed Shaikh”) vs. Union of India and anr reported in 2022 (6) TMI 534; Andaman Timber Industries vs. CCE, 2016(15) SCC 785. 15. It was submitted that this Court in case of Mahek Glazes Pvt. Ltd vs. Union of India reported in 2014 (300) ELT 25 (Guj) has held that respondent No.2 could not have denied the opportunity of cross- examination in the impugned final order and such request is required to be considered and decided prior to the passing of the final Order-in-original. It was therefore submitted that the impugned order passed by the respondent No.2 is contrary to what is held by this Court in case of Mahek Glazes Pvt. Ltd vs. Union of India (supra). Learned Senior Advocate Mr. Joshi further submitted that the contention of the respondent No.2 in para 130.6 of the impugned order to the effect that the party cannot seek cross- examination of co-noticee is also not correct. In support of his submission, reliance was placed on the following decisions: M/s. Gujarat Narmada Valley Fertilizers and Chemicals Ltd (GNFC) vs. Union of India reported in 2020 (1) TMI 1204; Basudev Garg vs. Commissioner of Customs reported in 2017 (48) STR 427 (Del); Shree Salasarji Metal Industries vs. Union of India reported in 2018 (9) TMI 1980. 16. It was therefore submitted that on the grounds of opportunity of cross- examination as well as breach of principle of natural justice, the impugned order is liable to be quashed and set aside. 17. On the other hand, learned advocate Mr. Siddharth Dave appearing for respondent No.2 submitted that the petitioners herein are only the co-noticee out of total 36 co-noticee against whom adjudication order is passed. It was therefore submitted that the alternative efficacious remedy to challenge the impugned Order-in-original dated 29.11.2021 is before the Customs Excise and Service Tax Tribunal under the provision of section 129A of the Customs Act, 1962. 18. It was submitted that while issuing the notice on 02.05.2022, this Court has reserved the opportunity for the respondent to raise the preliminary objection as regards the maintainability of this petition. It was submitted that the petitioner has alternative remedy under section 129A of the Customs Act,1962. 18. It was submitted that while issuing the notice on 02.05.2022, this Court has reserved the opportunity for the respondent to raise the preliminary objection as regards the maintainability of this petition. It was submitted that the petitioner has alternative remedy under section 129A of the Customs Act,1962. In support thereof, reliance was placed on the decision of Apex Court in case of Nivedita Sharma vs Cellular Operators Association of India and ors reported in (2011) 14 SCC 337 wherein, it is held that when a statutory forum is created by law for redressal of the grievances, a writ petition could not be entertained ignoring statutory dispensation. 19. Reliance was also placed on the decision of the Apex Court in case of Union of India and others vs Major General Shri Kant Sharma and anr in Civil Appeal No. 7400/2013 wherein vide order dated 11.03.2015 the Apex Court was pleased to consider the judgement of Nivedita Sharma and other judgements to hold that the petitioner is to be relegated to alternative statutory appeal as provided under the provisions of section 129A of the Act. 20. Learned advocate Mr. Dave also referred to and relied upon the following decisions in support of his submissions: Authorized Officer, State Bank of Travancore and anr vs. Mathew K.C., reported in 2018(2) TMI 25-Supreme Court; Union of India vs. M/s. Guwahati Carbon Limited reported in 2012 (11) TMI 885-SC; Assistant Commissioner (CT) LTU, Kainada & Ors vs. M/s. Glaxo Smith Kline Consumer Health Care Limited reported in 2020 (5) TMI 149 SC; M/s. Whirlpool Corporation vs. Registrar of Trademarks, Mumbai reported in (1998) 8 SCC 1 ; HarbanslalSahnia vs. Indian Oil Corporation Ltd reported in (2003) 2 SCC 107 . 21. 21. Reliance was also placed on the following decisions of this Court and other Hon’ble High Courts in support of the contention of alternative efficacious remedy: M/s. IHI Corporation vs. State of Gujarat and ors reported in 2020 (8) TMI 530; M/s. Variety Lumbers Private Limited vs. Union of India reported in 2020 (4) TMI 280; M/s. Sulekhram Steels Limited vs. Union of India reported in 2005 (191) E.L.T. 125(Guj.); M/s. Quippo Energy Limited vs. Union of India reported in 2016(46)S.T.R.16(Guj.) M/s. Radha Krishan Industries vs. State of H.P. and ors reported in 2021 (1) TMI 101- Himachal Pradesh High Court; M/s. BMW India Private Limited vs. State of Tamil Nadu, Joint Commissioner (CT-1) and ors reported in 2021 (8) TMI 1178 (Madras High Court); M/s. Mahaveer Foods & Beverages vs. The Principal Commissioner of GST & Central Excise, Chennai, The Head Central Food Technological Research Institute, Mysuru reported in 2021 (5) TMI 331 (Madras High Court); M/s. Dheeraj Shrivastava vs. State of M.P. and ors reported in 2019(9) TMI 392 (M.P. High Court); M/s. Prodair Air Products India Private Limited vs. The Deputy Commissioner of State Tax reported in 2022 (1) TMI 255 (Kerala High Court); M/s. M.A.Babu, the Deputy Chief Engineer Kerala State Electricity Board Limited and ors reported in 2018(12) TMI 560 Kerala High Court; M/s. Falcon Retreat Private Limited vs. The Additional Commissioner of Income Tax in Writ Petition No. 529 of 2022, High Court of Bombay at Goa; Braham Prakash vs. Government of NCT at Delhi and anr in W.P.(C) 15947/2022 & CM Appl 49690/2022 Delhi High Court; Delhi Development Authority Vs. Pushpa Wanti & Ors in LPA 314/2021 and CM Appeal No. 30501/2021 Delhi High Court; M/s. Subhash Chand Mukesh Chand vs. State of Rajasthan in Civil Writ Petition No. 1017/2022 in Civil Writ Petition No. 1017/2022 Rajasthan High Court; Janab Y. Allah Baksh vs. The Chirman in S.P.No. 16126 of 2022 Madras High Court; M/s. Uniyarakhurd Gram Seva Sahkari vs. State of Rajasthan in Civil Writ Petition No. 11320 of 2022 Rajasthan High Court. 22. Learned advocate Mr. Dave thereafter referred to the conduct of the petitioner to show that the petitioner has remained negligent in submitting reply despite various summons being issued from time-to- time by the respondent-authority. In support of such submission, reliance was placed on the following averments in affidavit-in-reply: “(13). 22. Learned advocate Mr. Dave thereafter referred to the conduct of the petitioner to show that the petitioner has remained negligent in submitting reply despite various summons being issued from time-to- time by the respondent-authority. In support of such submission, reliance was placed on the following averments in affidavit-in-reply: “(13). Thus, while imparting the aforesaid judgment, Hon’ble Supreme Court very categorically specified the circumstances/exceptional of the maintainability of the petition even though the alternative remedy is available. Whereas, in the present case, no such contingencies is present relying upon which the petition may be maintained before Hon’ble High Court of Gujarat nor any of the above exceptions was established by the petitioner. There was, in fact, no violation of the principles of natural justice was caused by the respondent Department. To elaborate further, the department further submit that despite being ample opportunities, the petitioner had always used delay techniques not only during adjudication proceedings but also during the investigation also. (13.1) During the investigation, the Summons were issued to Shri Pramodgiri Premgiri Goswami @ Rajubhai (herein after also referred to as Shri Raju Goswami), under Section 108 of the Customs Act, 1962 as per the details mentioned here-in-under; Sr.No. Summon No and Date Summoned for presence on 01 F.No: VIII/10-33/AIU/A/2019-20 dated 12.08.2019 22.08.2019 02 F.No: VIII/10-33/AIR/A/2019-20 dated 28.08.2019 30.08.2019 03 F.No: VIII/10-33/AIU/A/2019-20 dated 30.08.2019 05.09.2019 1st Summons : In response to the Summons dated 12.08.2019 issued under F. No: VIII/10-33/AIU/A/201920, Shri Pramodgiri Premgiri Goswami, Director of M/s Dashrath Silver Art Pvt. Ltd., Rajkot vide a letter dated 19.08.2019 informed that he had received the summons on 17.08.2019 and requested that due to forthcoming Janmashthami festival, he was pre-occupied with business work and it would be difficult for him to appear on 22.08.2019 and requested for another date in the month of September. 2nd Summons : Thereafter summons dated 28.08.2019 was delivered at his residential address at Rajkot which was received by his wife in person on 28.08.2019, and while receiving the summons she mentioned that there was an appointment at Lilawati Hospital in Mumbai and he will come on 05.09.2019. The summons dated 30.08.2019 was also not responded to by the person. 2nd Summons : Thereafter summons dated 28.08.2019 was delivered at his residential address at Rajkot which was received by his wife in person on 28.08.2019, and while receiving the summons she mentioned that there was an appointment at Lilawati Hospital in Mumbai and he will come on 05.09.2019. The summons dated 30.08.2019 was also not responded to by the person. 3rd Summons : Summons was further issued to Shri Pramodgiri Premgiri Goswami on 06.09.2019 to remain present on 09.09.2019 and in response to that, the Advocate on behalf of Shri Pramodgiri Premgiri Goswami through individual email informed that on account of nonavailability of lawyer and on account of prior engagement of his client, it would be difficult for him to appear on the given dates of 09.09.2019. He also requested for another date in the month of September. Further, in response to summons dated 06.09.2019, Shri Pramodgiri Premgiri Goswami forwarded letter dated 09.09.2019 through email dated 09.09.2019 requesting for a new date on 12.09.2019 citing reasons of family function. 4th Summons : Accordingly, Summons dated 09.09.2019 was issued directing him to remain present before the investigation officer and assist the inquiry. However, the said Shri Pramodgiri Premgiri Goswami, though legally bound, intentionally avoided to attend summons at the time and place mentioned and evaded the said four Summons issued under Section 108 of the Customs Act, 1962, and thereby not co-operated in the inquiry and appears to have committed offences punishable under Section 174 of the Indian Penal Code, 1860 and therefore, a complaint under Section 174 of the Indian Penal Code, 1860 read with Section 108 of the Customs Act, 1962 was filed before the Hon’ble Court of the Additional Chief Metropolitan Magistrate. Accordingly, Shri Pramodgiri Premgiri Goswami was served summons at Rajkot on 24.09.2019 and he acknowledged the summons and expressed his willingness to join the inquiry and so as, the department could able to record his statement under the provisions of the Customs Act.” 23. It was submitted that along with the show-cause notice after issuance of the show-cause notice ample opportunity to defend the charges proposed against the petitioner was provided and despite issuance of the show-cause notices in the year 2019, the petitioner filed submissions only on 14.03.2020 i.e. almost after lapse of additional period two months. Despite granting various opportunities, the petitioner did not submit reply to the show-cause notice. 24. Despite granting various opportunities, the petitioner did not submit reply to the show-cause notice. 24. It was further pointed out by learned advocate Mr. Dave that even during the adjudication proceedings, sufficient care is taken to comply with the principles of natural justice by providing sufficient opportunity to the petitioner to represent their case. It was submitted that from the above averments in affidavit-in-reply, the respondent cannot be said to have violated any principle of natural justice. It was submitted that these petitions are therefore liable to be dismissed on the ground of alternative efficacious remedy alone as the petitioner had sufficient opportunity of hearing during the adjudication proceedings and there is no violation of principle of natural justice as alleged by the petitioners. 25. Learned advocate Mr. Dave further submitted that even if the petitioner is aggrieved by any violation of principle of natural justice, such ground can be raised before the Tribunal in the appeal which may be filed and the Tribunal is competent to adjudicate on such ground and only because of the allegations levelled by the petitioner without any basis, the petition should not be entertained by this Court in view of the alternative efficacious remedy available to the petitioner. 26. It was submitted by learned advocate Mr. Dave that the petitioner was well aware with the facts and he has no case to defend since he has already violated the provisions of the Customs Act,1962 by smuggling huge quantity of gold into India and thereby causing huge revenue loss to the government exchequer the adjudicating authority having provided ample opportunity to the petitioner to place the defense but the petitioner failed to produce any evidence in support of the charges levelled in the show-cause notice and therefore, instead of making grievance on technicalities of breach of principle of natural justice, the petitioner is liable to raise all the contentions before the Tribunal. 27. Reference was also made by learned advocate Mr. Dave upon the modus operandi adopted by the petitioner for smuggling a huge quantity of gold into India. It was submitted that in the impugned order-in- original, respondent No.2 has discussed the entire facts and evidence on record and the petitioner is only making hue and cry before this Court for breach of principle of natural justice without though the respondent-authority has provided ample opportunity of hearing to the petitioner for submitting the defense. It was submitted that in the impugned order-in- original, respondent No.2 has discussed the entire facts and evidence on record and the petitioner is only making hue and cry before this Court for breach of principle of natural justice without though the respondent-authority has provided ample opportunity of hearing to the petitioner for submitting the defense. It was therefore submitted that the petitions should not be entertained while exercising extraordinary jurisdiction under Article 226 of the Constitution of India. 28. Learned advocate Mr. Dave, in support of his submissions referred to and relied upon the following decision: “The Hon’ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kainada & Ors. V/s. M/s. Glaxo Smith Kline Consumer Health Care Limited, as reported at 2020 (5) TMI 149 - SUPREME COURT, wherein, Hon’ble High Court had allowed the writ-petition on the ground that the statutory remedy had become ineffective for the respondent (writ petitioner) on account of expiry of 60 days from the date of service of the assessment order. Against the said order, Hon’ble Supreme Court had held that as regards the power of the High Court to issue directions, orders or Writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 926 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory imitation period and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such. Hon’ble Supreme Court finally allowed the appeal of the government and held that the High Court ought not to have entertained the subject writ petition filed by the respondent herein ; that the same deserved to be rejected at the threshold.” 29. Learned advocate Mr. Hon’ble Supreme Court finally allowed the appeal of the government and held that the High Court ought not to have entertained the subject writ petition filed by the respondent herein ; that the same deserved to be rejected at the threshold.” 29. Learned advocate Mr. Dave submitted that similar grounds are taken by all the petitioners to get away with the impugned order wherein the role of each of the petitioner is adjudicated for smuggling of the gold by levy of penalty and confiscation of goods and thereby the petitioners want to stole away the adjudication process undertaken by the respondent No.2. Learned advocate Mr. Dave on merits, referred to and relied upon various statements recorded during the investigation referred to in the impugned order to submit that the respondent- authority has considered all the material on record as well as the submissions made on behalf of the petitioners while passing the impugned order which may be challenged by the petitioners by preferring the appeal before the CESTAT. 30. Learned advocate Mr. Dave regarding contention raised on behalf of the petitioner for not providing opportunity of cross-examination, referred to and relied upon the following averments made in para 16.7 of the affidavit-in-reply filed on behalf of the respondent which reads as under: “16.7 As regard to Para 4.16 regarding request to provide certain relied upon documents are concerned, it is to submit that the Counsel for the petitioner had raised a plea for supply of certain relied upon documents vide his letter dated 12.10.2021. Though all the relied upon documents had been supplied to the petitioner along with the Show Cause Notice itself, the Counsel was informed to get the documents collected from Superintendent AIU and also the contact number of the concerned person had been given vide letter dated 20.10.2021. However, no documents have been collected till the issuance of impugned OIO and as such it is found that the plea for supply of relied upon documents was merely a ruse to delay the adjudication process. To prove that the plea for supply of relied upon documents was merely an attempt to delay the adjudication process, the following are submitted before Hon’ble Court. It is pertinent here to mention that the Show Cause Notice was issued on 27.11.2019 and 24.12.2019 respectively specifically directing the concerned Noticees to respond the Notice within thirty(30) days’ time. To prove that the plea for supply of relied upon documents was merely an attempt to delay the adjudication process, the following are submitted before Hon’ble Court. It is pertinent here to mention that the Show Cause Notice was issued on 27.11.2019 and 24.12.2019 respectively specifically directing the concerned Noticees to respond the Notice within thirty(30) days’ time. It is only after a complete notice is served upon the petitioner that the period of 30 days to file a reply to the notice would commence. In this case, the complete notice was received by the petitioner along with copies of relied upon documents. The remarks was also specifically mentioned at the Annexure to the Show Cause Notice that “the List above is not exhaustive the documents withdrawn under respective Panchnama and Statements not included in above list are available for inspection.”. The fact that the petitioner had never approached the revenue for soft copies of any further documents nor asked for verification of the documents, which were available for inspection at any stage before filing of his defense reply or before the expiry of stipulated time period of thirty day whichever is later. Had he really intended to verify the same, he had opportunity to verify the same during the reasonable time limit preferably within the thirty days from the receipt of the said Show Cause Notice or maximum prior to submission of his defense reply to the said Show Cause Notice. But, just to delay the adjudicating proceedings, they opted this operandi at the time when department was not only compelled but about to pass the order in the said SCNs within time limit prescribed by Section 28(9) of the Act. It was also specifically to bring before the notice of Hon'ble High Court that this scam of smuggling of large scale gold was completely managed with the planned minds and all actively involved accused had managed this smuggling racket forming conspiracy among them. It is also pertinent here to mention that they have never co- operated the department during the investigation until the department rushed to various courts including High Court for giving them specific directions to appear and assist the department in the said smuggling racket. Afterwards also, all of these accused were squarely failed to co-operate the department. It is also pertinent here to mention that they have never co- operated the department during the investigation until the department rushed to various courts including High Court for giving them specific directions to appear and assist the department in the said smuggling racket. Afterwards also, all of these accused were squarely failed to co-operate the department. They completely knew the stipulated time factors which are to be followed by the respondent department with reference to present case. The department also emphasizes here the provisions of Section 28(9) of the Customs Act, 1962 which stipulates as under; Section 28(9) The proper officer shall determine the amount of duty or interest under sub-section (8), {a} within six months from the date of notice where it is possible to do so in respect of cases falling under clause {a) of subsection (1); (6) within one year from the date of notice where it is possible to do so in respect of cases falling under subsection (4). [Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under subsection (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further period of one year: Provided further that where the proper officer fails to determine within such extended period, such proceeding shall be deemed to have concluded as if no notice had been issued;] Thus, it is provided in the Customs Act itself that adjudication proceedings is time bound after amendment of Section 28(9) of the Customs Act, 1962 as stipulated period of determining the case is six months/ one year in the cases of Section 28(1)/ 28(4) from the date of Notice. Extension for further period of six months/ one year is also available if needed. Inspite of limitation under Section 28(9), in the present case, full efforts were made to decide the matter by complying with the principal of natural justice. However, the accused had completely played with the provisions of Act by way of using various delay techniques and not co-operating the investigation as well as the adjudication proceedings. Inspite of limitation under Section 28(9), in the present case, full efforts were made to decide the matter by complying with the principal of natural justice. However, the accused had completely played with the provisions of Act by way of using various delay techniques and not co-operating the investigation as well as the adjudication proceedings. They were completely in knowledge that the said show cause notices were to be decided and an order to that was supposed to be passed by 26.12.2019 and so as only, they were completely ignoring the personal hearing opportunities and when they were compelled to avail being it was the last opportunity, they started to ask for the irrelevant documents and cross-examination knowingly just to hindered the time bound adjudicating proceedings and again they formed the conspiracy. To elaborate the facts in detail, the following chart is submitted from which Hon’ble Court may easily identify the truth behind the allegations framed against the department for not-providing documents as well as not providing cross examination. Name of the accused Requests made after the two-to-three opportunities of personal hearing over-i.e. after the approximate period laps of 700 days from the date of receipt of subject show cause notice Shri Jigneshkumar Govindbhai Savaliya His advocate appeared on 01.11.2021. He requested for copies of relied upon documents and cross examination of the witnesses mentioned in their written submissions. Shri Lokesh Sharma As above. On 26.10.2021, he requested for copy of the retraction to statement made by his client. He also requested for cross-examination. Shri Vijesh Shankerlal Raval Counsel for the Noticee appeared for personal hearing on 26.10.2021 wherein he requested for cross-examination Ms. Divya Kishor Bhundia Counsel for the Noticee appeared for personal hearing on 26.10.2021 and sought for an adjournment. In view of the request for adjournment made by the Counsel of the Noticee personal hearing was scheduled at 2.11.2021 at 12.00 hrs. However, none appeared on the scheduled date and time. Smt. Hina Rutugna Trivedi Personal hearing was held on 26.10.2021 which was further continued on 01.11.2021 wherein Counsel for the noticee requested for cross examination Shri Dharmagna Arvindkumar Trivedi The personal hearing scheduled on 27.10.2021 was attended by his Counsel and he requested cross examination Shri Bhargav Kanubhai Tanti Counsel for the Noticee appeared for personal hearing on 26.10.2021 and sought for copies of relied upon documents. Shri Beerendra Singh Yadav The personal hearing scheduled on 27.10.2021 was attended by Shri Uday Joshi, Advocate and he requested cross examination. Shri Mukeshkumar Bhaishankarbhai Trivedi The personal hearing scheduled on 27.10.2021 was attended by Shri Uday Joshi, Advocate and he requested cross examination. Ms. Nia Chunilal Parmar The Counsel for the Noticee appeared for the personal hearing scheduled on 27.10.2021. He requested for cross-examination and asked for copies of various documents which are not a part of the relied upon documents. Shri Pramodgiri Premgiri Goswami Personal hearing was cheduled on 12.10.2021 wherein Shri Hardik Modh appeared and submitted that he would be making request for supply of certain documents. He also requested for cross examination. Shri Jitendrakumar Dhanjibhai Rokad Personal hearing was scheduled on 14.10.2021, 27.10.2021 and 2.11.2021. However, the Noticee failed to appear on any of scheduled dates and no request for adjournment is forthcoming from the noticee. Shri Mehul Rasikbhai Bhimani Personal hearing was scheduled on 12.10.2021 wherein Shri Hardik Modh appeared and submitted that he would be making request for supply of certain documents. He also requested for cross examination. Shri Vipul Joshi Personal hearing was scheduled on 12.10.2021 wherein Shri Hardik Modh appeared and submitted that he would be making request for supply of certain documents and also the written submissions. He also requested for cross examination. Shri Virendra B. Patel Noticee No. 22 was granted further opportunities to be heard in person on 14.10.2021 and 28.10.2021. However, on both the occasions, the counsel of Noticee No. 22 sought of adjournment on the ground that their request for cross examination was pending decision. Shri Jigar Kapadia Personal hearing was held on 13.10.2021 wherein Shri Aditya Tripathi, Advocate appeared and requested for documents listed in their reply dated 21.1.2020 and cross examination. However, on both the occasions, the counsel of Noticee No. 22 sought of adjournment on the ground that their request for cross examination was pending decision. Shri Jigar Kapadia Personal hearing was held on 13.10.2021 wherein Shri Aditya Tripathi, Advocate appeared and requested for documents listed in their reply dated 21.1.2020 and cross examination. From the above, it can be easily seen that most of all accused had made the request asking to provide them the additional documents and cross examination after the two-to three opportunities of personal hearing over - i.e. after the approximate period laps of 700 days from the date of receipt of subject Show Cause Notice instead of provided time limit of thirty days which just proves that the intention of asking the additional documents and the cross examination was nothing but just to delay the adjudicating proceedings and more to wrongly plead the higher judiciaries and take the shelter/advantage on the grounds with the allegations that the principle of natural] justice was not followed by the respondent department during the adjudication proceedings. However, in a nutshell, it is further clarified that almost every documents which were actually relied upon by the respondent department were provided to the petitioner and the documents, which were just casual in nature which are mentioned by passing reference in the grounds of subject Show Cause Notices for narration of facts and withdrawn under respective Panchnama and Statements but not included in the Annexure to the Show Cause Notice, were made available for inspection to the Petitioner. Therefore, apart from the above submissions, the department submits that the onus was also on the petitioner to prove that non-supply of documents has prejudiced him and affected his right to make an effective representation. In such a case, the petitioner's plea of non-supply of document has to be supported by prejudice caused to him in making an effective representation. It would also be pertinent to note the observations of the Supreme Court in State of T.N. v. Abdullah Kadher Batcha: (2009) 1 SCC 333 , to the following effect: "7, The court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu. It would also be pertinent to note the observations of the Supreme Court in State of T.N. v. Abdullah Kadher Batcha: (2009) 1 SCC 333 , to the following effect: "7, The court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non-supply of the documents called for had any effect on the detenu and/ or whether the non-supply was prejudicial to the detenu. Merely because copies of some documents have (sic not) been supplied, they cannot by any stretch of imagination be _ called as relied upon documents. While examining whether nonsupply of a document would prejudice a detenu, the court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non- supply thereof would prejudice the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced.” 31. Referring to the above averments it was submitted that the petitioner in spite of knowing their involvement in the smuggling activity which is held to be proved against the petitioners by the impugned order passed by respondent No.2 have approached this Court. 32. It was also submitted by learned advocate Mr. Dave that the respondent No.2 has not granted opportunity of cross- examination in view of the provision of the Customs Act to the effect that the evidence relied upon during the course of adjudication as per the provision of section 28(9) of the Customs Act the determination of the case is required to be made within six months for one year in case of sections 28(1) and 28(4) from the date of notices and the extension for further period of six months or one year is available, if needed. It was submitted that due to limitation, it is always not possible to apply rule of evidence in cross-examination. It was submitted that despite the limitation under section 28(9) of the Customs Act, efforts were made by the respondent No.2 to decide the matter by complying with the principle of natural justice. 33. It was submitted that due to limitation, it is always not possible to apply rule of evidence in cross-examination. It was submitted that despite the limitation under section 28(9) of the Customs Act, efforts were made by the respondent No.2 to decide the matter by complying with the principle of natural justice. 33. It was therefore submitted that the proceedings under the Custom law as per the provisions of section 108 of the Customs Act statement recorded during investigation is liable to be admitted as evidence. In support of his submissions, reliance was placed on the following decisions: “(i) In the case of Shri Naresh J. Sukhawani Versus Union of India, as reported at 1996 (83) E.L.T. 258 (8.C.),Hon’ble Supreme Court of India had held that : Evidence - Statement of co-accused whether usable without other corroborative evidence - Attempt to export foreign exchange out of India - Carrier naming Shri Subhash Dudani who has given such foreign exchange to him for delivery at Hong Kong - Statement of Shri Dudani under Section 108 of the Customs Act, 1962 named Shri Sukhawani who has given the foreign exchange to him - Statement of co- accused (Shri Dudani) can be used as a substantive evidence connecting the petitioner with contravention of illegal export of foreign exchange - Section 30 of the Evidence Act - Section 161 of the Criminal Procedure Code, 1973.” (ii) In another case of Shri K.I. Pavunny Versus Assistant Collector, Central Excise Cllectorate, Cochin, as reported at 1997(90) E.L.T. 241 (S.C), Hon'ble Supreme Court has held as under; “Prosecution - Customs - Evidence required to prove offence - Supreme Court has consistently been keeping in view the object of Customs Act, 1962 viz. to safeguard duty and prevent evasion and smuggling which are organised white collar crimes committed under absolute Secrecy - Section 135 ibid - Section 9 of Central Excise Act, 1944, - Generally, the evidence in support of the violation of the Provisions by the Act consists in the statement given or recorded under Section 108, the recovery panchnama {mediator’s report) and the oral evidence of the witnesses wn proof of recovery and in connection therewith. [ 1996 (83) E.L.T. 258 (SC and 1997 (89) ELT 646 (SC) referred to] (para 26)” 34. Learned advocate Mr. [ 1996 (83) E.L.T. 258 (SC and 1997 (89) ELT 646 (SC) referred to] (para 26)” 34. Learned advocate Mr. Dave further referred to and relied upon the provision of section 124(b) of the Customs Act which deals with the issue of show-cause notice before commencing the proceedings for violation of the provision of the Act and noticee is required to submit his reply as is bound by the said provision. Referring to the above provision of section 124 of the act, it was submitted that it has ingredients of principle of natural justice and therefore, denial of request of cross-examination has been held as not violating the principle of natural justice during quasi-judicial proceedings. In support of his submissions, reliance was placed on the following decisions: “(i) In case of Kanungo & Co. Vs. Collector of Customs, Calcutta & Ors as reported at 1993(13) E.L.T 1486(S.C.) wherein it was unequivocally held that for proceedings under Customs Act, the right to compliance to the principles of natural justice does not cover the right to cross examination witnesses. Relevant Para 12 is reproduced wherein the Hon'ble Supreme Court observed as follows - “In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be crossexamined by them on the statements made before the Customs Authorities. Accordingly, I hold that there is no force in the third contention of the appellant.” (ii) In the case of M/s. Suman Silk Mills Pvt. Ltd. Vs. Commissioner of Customs &C.Ex., Baroda, as reported at 2002 (142) E.L.T. 640 (Tri.-Mumbaij, Tribunal observed at Para 17 that “Natural Justice - Cross-examination - Confessional statements - No infraction of principles of natural justice where witnesses not cross- examined when statements admitting evasion were confessional.” (iii) In the case of Commissioner of Customs, Hyderabad V. Tallajalmpex, as reported at 2012(279) ELT 433 (Tri.), it was held that “In a quasi-judicial proceeding, strict rules of evidence need not to be followed. Cross examination cannot be claimed as a matter of right.” (iv) In the case of M/s. Patel Engg. Cross examination cannot be claimed as a matter of right.” (iv) In the case of M/s. Patel Engg. Ltd. vs UOI, as reported at 2014 (307) ELT 862 (Bom.), Hon’ble Bombay High Court has held that; “Adjudication - Cross-examination ~ Denial of held does not amount to violation of principles of natural Justice in every case, instead it depends on the particular facts and circumstances ~ Thus, right of cross- examination cannot be asserted in all inquiries and which rule or principle of natural justice must be followed depends upon several factors - Further, even if cross-examination is denied, by such denial alone, it cannot be concluded that principles of natural justice had been violated.” [para 23] (v) Hon'ble Tribunal in its decision in Sridhar Paints v/s Commissioner of Central Excise, Hyderabad, as reported at 2006(198) ELT 514 (Tri- Bang), has held that: “…. … ….. …. denial of cross- examination of witnesses/ officers is not a violation of the principles of natural justice, we find that the Adjudicating Authority has reached his conclusions not only on the basis of the statements of the concerned persons but also the various incriminating records seized. We hold that the statements have been corroborated by the records seized” (Para 9) (vi) Hon’ble Punjab and Haryana High Court in its decision in the case of M/s. Azad Engg Works v/s Commissioner of Customs and Central Excise, as reported at 2006 (2002) ELT 423, held that; “……………...It is well settled that no rigid rule can be laid down as to when principles of natural justice apply and what is their scope and extent. The said rule contains principles of fair play. Interference with an order on this ground cannot be mechanical. Court has to see prejudice caused to the affected party. Reference may be made to judgment of Hon’ble the Supreme Court in K.L. Tripathi v. State Bank of India and others, AIR 1984 SC 273 ” (vii) Hon’ble Tribunal in the case of P Pratap Rao Sait v/s Commissioner of Customs, as reported at 1988 (33) ELT (Tri) has held in Para 5 that: “…….The plea of the learned counsel that the appellant was not permitted to cross-examine the officer and that would vitiate the impugned order on grounds of natural justice is not legally tenable. (viii) Similarly in A.L Jalauddin v/s Enforcement Director, as reported at 2010 (261) ELT 84 (Mad HC}, the Hon High court held that; “……..Therefore, we do not agree that the principles of natural justice have been violated by not allowing the appellant to cross-examine these two persons. We may refer to the paragraph in AIR 1972 SC 2136 - 1983 (13) E.L.T. 1486 (S.C.) (Kanungo & Co. vs. Collector, Customs, Calcutta)” 35. Learned advocate Mr. Dave further submitted that the proceeding before the quasi-judicial authority is not at the same footing as the proceedings before a Court of law and it is the distinction of the authority whether request of cross- examination to be allowed in the interest of natural justice. In support of his submissions, reliance was placed on the following decisions: “(i) Poddar Tyres (Pvt) Ltd. v. Commissioner reported at 2000 (126) E.L.T, 737: - Wherein it has been held that cross-examination not a part of natural justice but only that of procedural justice and not a ‘sine qua non’. (ii) Kumar Jagdish Ch. Sinha v. Collector - reported at 2000 (124)_E.L.T, 118 (Cal H.C.): - In this case it has been held that the right to confront witnesses is not an essential requirement of natural justice where the statute is silent and the assessee has been offered an opportunity to explain allegations made against him. (iii) A.K. HanbeenMohammed vs. Collector - reported at 2000 (125) E.L.T. 173 (Mad HC): wherein it has been held that the strict rule of burden of proof applicable to criminal prosecution may not be applicable to proceedings before Customs authorities. (iv) Shivom Ply N-Wood Pvt. Ltd. Vs Commissioner of Customs & Central Excise Aurangabad2004(177) E.L.T 1160(Tri. - Mumbai): - wherein it has been held that cross-examination not to be claimed as a matter of right).” 36. Learned advocate Mr. Dave also submitted that it has been held that request for cross-examination by noticee who has made voluntary statement during the investigation is not acceptable. In support of his submissions, reliance is placed on the following decisions: “(i) In the case of Surjeet Singh Chhabra v. UOI, as reported at 1997 (89) E.L.T. 646 (S.C.), it was held that “Customs Officials are not police officers and admission made before them though retracted binds the deponent. In support of his submissions, reliance is placed on the following decisions: “(i) In the case of Surjeet Singh Chhabra v. UOI, as reported at 1997 (89) E.L.T. 646 (S.C.), it was held that “Customs Officials are not police officers and admission made before them though retracted binds the deponent. In view of voluntary statements recorded and such statements not retracted did not warrant cross-examination when other circumstantial provided reliable basis corroborating the statements, When nothing surfaced that the witnesses had any enmity with appellants, those were not liable to be discarded nor required to be put to cross-examination.” (ii) In the case of Jagdish Shanker Trivedi Vs. Commissioner of Customs, Kanpur, as reported at 2006 (194) E.L.T. 290 (Tri.-Del.), Tribunal observed at Para 7.2 that; “Confessional statements of noticee - Retraction thereof, which was otherwise unacceptable, would not entitle them to claim cross- examination of witnesses on aspects which were confessed by them ~ There is no violation of natural justice principles in such a course...” (iii) Hon’ble Delhi Tribunal in the case of M/s. OnidaSaka Ltd. v/s Commissioner of Central Excise, Noida, as reported at 2011 (267) E.L.T. 101 (Tri.Del), in para 4 of its order held that; “……. since the statements of the persons whose cross-examination has been sought, has not been retracted, there was no necessity for permitting their cross-examination” 37. It was further submitted that request for cross-examination made by noticee without indicating specific reason is not admissible in view of the following decisions: “(i) In the case of M/s. Fortune Impex Vs. Commissioner of Customs, Calcutta, as reported at 2001(138) E.L.T.556 (Tri. - Kolkata), Hon’ble Tribunal observed at Para 12 that: “,..it is not required that in each and every case, cross-examination should necessarily be allowed. There is no absolute right of cross-examination provided in the Customs Act. The Advocate had given a list of 26 persons for cross- examination without indicating the specific reasons for cross-examining the...it cannot be said that there was violation of principles of natural justice by not allowing the cross-examination of the persons sought by him.” This view taken by the Tribunal has been affirmed by Hon’ble Supreme Court — 2004 (164) E.L.T. 4 (S.C.) & 2004 (167) E.L.T.A. 134 (S.C.). (ii) Hon’ble CESTAT Kolkata in its decision in Dipu Das v/s Commissioner of Customs Kolkata, reported at 2010(261) ELT 408 (Tri-Del), has held that; “…………...In adjudication proceedings, cross-examination cannot be claimed as a matter of right on mere asking for it, without furnishing reasons for the same”, 38. It was submitted that the request for cross-examination of petitioner, who has made voluntary statement during the investigation explaining the facts where there is no dispute about the facts is not acceptable in view of the following case law: “(i) In the case of Union of India vs. Rajendra Bajaj as reported at 2010 (253) E.L.T. 165(Bom) Hon’ble Bombay High Court, stated in para 6 which is reproduced herein below- “the Supreme Court held in K.L.Tripathi vs. State Bank of India (1984) 1 SCC 43 that where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases and does not vitiate the decision”. 39. Learned advocate Mr. Dave vehemently submitted that the cross-examination of co-noticee is not permissible and when the noticee failed to provide any cogent or valid reason for the cross-examination of the persons who are co-noticee, then the request is not required to be accepted. 40. In support of his submissions he relied upon the following decisions: Union of India vs. Rajendra Bajaj reported in 2010 (253) ELT (Bom.); Jagdish Shankar Trivedi vs. Commissioner of Customs, Kanpur reported in 2006(194) ELT 290 (Tri. Delhi); N.S.Mahesh vs. CC, Cochin reported in 2016(331( ELT 402 (ker.); Laxmi vs. Collector of Customs, Lucknow, reported in 2001(138) ELT 1090; M/s. Om International vs. CC, New Delhi reported in 2007 (217) ELT 88 (Tri. Del); Liyakat Shah vs. Commissioner of C.Ex. Indore-II(Bhopal) reported in 2000(120)ELT 556; Shri Ranchhodbhai Patel vs. Central Board of Revenue, New Delhi reported in 2000(125) ELT 281 (Punj); Harinder Pal Singh Shergill vs. Commissioner reported in 2010(259) ELT A19(SC); Surjeet Singh Chhabra vs Union of India reported in 1997 (89) ELT 646 (DC); M/s. Kanungo & Co. vs. Collector of Customs reported in 1983 (13) ELT 1486 (SC); Fortune Impex vs. Commissioner of Customs, Calcutta reported In 2001 (138) ELT 556 ; M/s. Erode Annai Spinning Mills (Pvt.) Ltd reported in 2019 (366) ELT 647(T) 41. Learned advocate Mr. vs. Collector of Customs reported in 1983 (13) ELT 1486 (SC); Fortune Impex vs. Commissioner of Customs, Calcutta reported In 2001 (138) ELT 556 ; M/s. Erode Annai Spinning Mills (Pvt.) Ltd reported in 2019 (366) ELT 647(T) 41. Learned advocate Mr. Dave has referred to and relied upon following decisions in support of his submissions: State of Maharashtra vs. Greatship (India) Ltd reported in 2022(0) AIR (SC) 4408 para 7 to 10 in support of his submissions that this High Court ought to have relegated a writ petitioner to avail statutory remedy of appeal and thereafter to avail other remedies provided under the statute instead of entertaining the writ petition. Reliance was placed on the case of S.R.Digital TV and Broadban Pvt. Ltd through Vijay Kumar Garg vs. Union of India Finance Secretary and ors of MP High Court reported in 2022 SCC online MP 521 wherein it is held by the MP High Court when the petitioner has an alternative remedy then data and documents related to show-cause notice were already provided and the petitioner did not participate in the inquiry before the adjudicating authority and by sending letters for providing such documents and in spite of the opportunity given to appear before the authorities, the petitioner did not collect such documents then the writ petition would not be maintainable. It was held by the Hon’ble M.P.High Court that the appellate authority is competent to examine the effect of non-supply of non relied upon documents data while deciding the appeal and practice of the petitioner to delay the proceedings by demanding such relied upon documents cannot be the cause for filing of the writ petition. Reliance was placed on the decision of Aziz Fakirmohamed Sumbhaniya vs. Union of India (SCA No.13091/2018) of this Court wherein it was held as under: “34 Denial of right to cross-examine the witnesses whose statements recorded under section 108 of the Customs Act and of those officers who recorded such statements is much emphasized upon. “34.5 The cross-examination, in a given scenario, as was there before the Apex Court, is held not to be an absolute right and the facts of every matter shall need to be regarded by the Court at the time of considering the request for cross-examination. “34.5 The cross-examination, in a given scenario, as was there before the Apex Court, is held not to be an absolute right and the facts of every matter shall need to be regarded by the Court at the time of considering the request for cross-examination. This Court also is not oblivious of the fact that without proving the version of the witnesses in examination-in-chief, it is impermissible for the prosecution/department to take into account their evidence given in the form of oral statements. Section 9D of the Customs Excise Act and Section 138B of the Customs Act require fulfillment of these requirements. However, these being legal issues can be raised at any stage before any judicial or quasi judicial authority and they need to be regarded by those authorities. Again, non-availment of opportunity whether would also cause serious prejudice to the parties, also, can be well appreciated by the Appellate authority as and when raised. 35. From the entire gamut of discussion, what can be gathered is that service of show cause notice appears to be valid and thereafter also, couple of notices were served upon the petitioners for availing an opportunity of hearing at the time of adjudication of the show cause notice and it emerges prima facie that the petitioner has not participated. Whether the reasons put forth for non-participation, even through the authorised representative, could surely be agitated in appeal for the Appellate authority to adjudicate.” Reliance was placed on the decision in case of Assistant Commissioner of State Tax vs. Commercial Steel Ltd reported in 2021 (10)Scale 665 of the Supreme Court wherein, the Hon’ble Apex Court after considering the facts of the said case held that there was in fact no violation of principle of natural justice since notice was served on the person in charge of the conveyance and it was not appropriate therefore, in such facts it was not appropriate for the High Court to entertain the writ petition and the assessment of facts would have to be carried only by the appellate authority. It was submitted that the writ applicant before the Hon’ble Supreme Court was relegated to the appellate authority under section 107 of the CGST Act and it was held by the Hon’ble Apex Court that it can be entertained only in exceptional circumstances such as breach of fundamental rights, violation of principles of natural justice, excess of jurisdiction or challenge to the vires of the statute or delegated legislation. It was submitted that none of the ingredients are present in the facts of the case as sufficient opportunity was provided to the petitioner and there is no violation of principles of natural justice. Reference was made to the decision of the Apex Court in case of Assistant Commissioner (CT) LTU v. Glaxo Smith Kline Consumer Health Care Limited reported in 2020 SCC online SC 440 wherein the Apex Court has held about the availing of the alternative efficacious remedy instead of writ jurisdiction under Article 226 of the Constitution of India. The Apex Court in the facts of the said case also held that the High Court was not justified in condoning the delay which would otherwise not be possible for preferring appeal as provided under the statute and High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. It was therefore submitted that in the facts of the case when the adjudicating authority has considered the aspect of the providing sufficient opportunity and has consciously arrived at the decision for not granting cross examination in the facts of the case, the petitioner can raise all the contentions before the appellate authority and therefore, no interference is required to be made by this Court while exercising jurisdiction under Article 226 of the Constitution of India. Reliance was placed on the decision of Surjeet Singh Chhabra v. Union of India reported in 1997 (1) SCC 508 wherein in the facts of the said case there was a confession by the petitioner that he purchased the Gold and brought it and converted it as “Kara”. Reliance was placed on the decision of Surjeet Singh Chhabra v. Union of India reported in 1997 (1) SCC 508 wherein in the facts of the said case there was a confession by the petitioner that he purchased the Gold and brought it and converted it as “Kara”. In this situation bringing the gold without permission of the authority was in contravention of the custom duty and also FERA and the writ petitioner sought cross examination of witness who have said that the recovery was made from the petitioner necessarily and opportunity was required to be given for cross examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of the confession made by the petitioner which binds him and therefore, in the facts of the case, the failure to give an opportunity of cross examination to the witness was held not to be violative of the principles of natural justice. It was therefore submitted that in the facts of the case when the adjudicating authority have relied upon the statement recorded by the custom officer under section 108 which are in form of admissible evidence, the adjudicating authority has rightly refused to grant opportunity of cross examination to the petitioner. 42. In rejoinder, learned Senior Advocate Mr. Joshi submitted that reliance placed on behalf of the respondent on the decision in case of State of Maharashtra vs. Greatship (India) Ltd (supra) could not be applicable in the facts of the case as in the said case, the petitioner originally challenged the assessment order before the Bombay High Court by way of a writ petition since the assessment order was passed beyond the period of limitation prescribed in the Maharashtra VAT Act, Central Sales Tax Act which was allowed. In appeal preferred by the State of Maharashtra before the Apex Court, no doubt was raised regarding the maintainability of the petition before the High Court but the Hon’ble Apex Court held that petition could not have been entertained considering the fact that there was serious factual dispute as to whether assessment order was passed within the prescribed time limit or not. It was submitted that in the facts of the present case the core issue is regarding violation of principles of natural justice as respondent No.2 without supplying copies of the relied upon documents and without providing opportunity of cross-examination passed the impugned order by placing reliance on such documents retrieved from the pen-drive and statements of Ms. Nita Parmar and Mr. Rutugna Trivedi. 43. It was submitted that similarly reliance placed on the case of SR Digital TV and Broadband Pvt Ltd. (supra) would also not be applicable in the facts of the case as in the said case the assessee instead of appearing before the adjudicating authority kept on requesting to supply the copies of the data collected from the laptop instead of participating in the adjudication proceedings. In such circumstances, the Hon’ble Madhya Pradesh High Court observed that when any of the noticee prayed for fair trial then there should be effective participation in the entire trial. It was submitted that in the facts of the case the petitioner appearing before the adjudicating authority and repeatedly requests to provide copies of relied upon documents. It was therefore submitted that the said decision would be of no help to the respondent authority. 44. With regard to reliance placed on the decision of the Aziz Fakirmohamed Sumbhaniyva (supra), it was submitted that in the facts of the said case, show cause notice along with couple of personal hearing notices were served upon the petitioner for adjudication of show cause notice however the petitioner did not participate in the adjudication proceedings whereas in the facts of the case the petitioner participated and cooperated in the entire investigation and quasi-judicial proceedings. 45. Referring to the decision of the Assistant Commissioner of Sales Tax v. Commercial Steel Limited(supra), it was submitted that the said decision was passed in the facts wherein the assessee was not able to provide any of the four requirements for entertainment of the writ petition under Article 226 of the Constitution of India whereas in the facts of the present case, the petitioner has demonstrated that the respondent No.2 has violated the principle of natural justice by by not supplying the relied upon documents and by not granting opportunity of cross examination. 46. 46. It was also pointed out that decision of Surjeet Singh Chhabra (supra) is also not applicable as in the said case the assessee sought cross-examination of panch witnesses and seizing officer and the factual dispute was with respect to confiscation of jewellery either at conveyor belt or at green channel whereas in the facts of the case, admittedly the petitioner sought cross examination of co-noticee from whom the pen-drive was recovered and on the basis of the statement of co-noticee, penalties are levied by the respondent No.2 and therefore, the cross examination was sought to bring the correct facts on record for effective adjudication of the dispute and to review the fact as to why the name of the present petitioner has been drawn in the documents maintained by Ms. Nita Parmar. 47. Reference was made to the decision of the Assistant Commissioner (CT) LTU Kakinada and others (supra) to distinguish the same on the ground that the said decision was taken in situation wherein assessee concerned failed to avail statutory remedy of appeal within the prescribed time limit and approached High Court under Article 226 of the Constitution of India after statutory period of limitation. It was submitted that in the facts of the case, the petitioner has filed the writ petition on 07.03.2022 which is within the statutory limit for filing appeal before the Tribunal. It was submitted that the impugned order was passed on 29.11.2021 and the same was received by the petitioner on 04.12.2021 and as per the provision of section 129A(3), the appeal was required to be filed within three months and accordingly, the petition filed by the petitioner is within the period of limitation. 48. It was further submitted that the time period from 15.03.2020 to 28.02.2022 is required to be excluded for the purpose of limitation in view of the Covid-19 pandemic as per the order passed by the Hon’ble Supreme Court on 10.01.2020 in cognizance of extension of limitation in Misc. Application No. 21/2022 in Misc. Application No. 665/2021 in Suo Motu writ petition (C) No.3 of 2020. Application No. 21/2022 in Misc. Application No. 665/2021 in Suo Motu writ petition (C) No.3 of 2020. It was therefore submitted that in terms of the judgement and order dated 10.01.2022, last date of filing of appeal was 30.05.2022 whereas in the facts of the case writ petition is filed on 07.03.2022 which was well within the period of limitation in view of the aforesaid decision of the Apex Court excluding the period of Covid-19 while calculating the period of limitation. 49. Learned Senior Advocate Mr. Joshi has also placed on record orders passed by the CESTAT in case of other co-noticee to point out that appeals filed by the other co-noticee are already allowed by the CESTAT by deleting the penalty levied by the impugned order dated 29.11.2021. 50. With regard to other petitioners, respective learned advocates have adopted the submissions made by learned Senior Advocate Mr. Mihir Joshi for the petitioner of Special Civil Application No. 5090/2022. The facts of other petitioners are similar as the petitioners have raised contentions of not supplying the copies of relied upon documents and as well as not providing opportunity of cross-examination and therefore, the same are not narrated in detail. The basic challenge in this petition is with regard to impugned order-in-original is passed only on the ground of not adhering to the principles of natural justice and not granting opportunity of cross-examination as requested by the petitioner. 51. Having heard learned advocates for the respective parties and having considered the facts and material made available on record, it is not in dispute that the show-cause notice was issued on 24.12.2019 calling upon the petitioners to show cause as to why the petitioners should not be penalized by confiscating 43 Kg of Gold under the provisions of section 111 (d), 111(i), 111(l) and 111(m) of the Customs Act,1962 along with custom duty, interest and penalty. Confiscation of different amount of gold from different persons along with custom duty, interest and penalty is reproduced hereunder: Names of Gold Smuggled Carrier duty, interest and penalty Confiscation of Gold in Kg along with custom Mr. Rutugna Trivedi 4886.206 Ms. Divya Kishore Bhundia 1607.632 Ms. Hina Rutugna Trivedi 1089.559 Mr. Dharmanga Trivedi 983.15 Mr. Bhargav Kanubhai Tanti 761 Mr. Beerendra Singh Yadav 257 Mr. Mukeshkumar Bhaishankarbhai Trivedi 45 Mr. Vijesh Raval 70-73 Mr. Jitendra Rokad 185 Mr. Mehul Bhimani 185 52. Rutugna Trivedi 4886.206 Ms. Divya Kishore Bhundia 1607.632 Ms. Hina Rutugna Trivedi 1089.559 Mr. Dharmanga Trivedi 983.15 Mr. Bhargav Kanubhai Tanti 761 Mr. Beerendra Singh Yadav 257 Mr. Mukeshkumar Bhaishankarbhai Trivedi 45 Mr. Vijesh Raval 70-73 Mr. Jitendra Rokad 185 Mr. Mehul Bhimani 185 52. 4886.206 Kg of Gold smuggled by (i) Shri Rutugna Arvindkumar Trivedi (ii) Shri Jigneshkumar Govindmbhai Savaliya (ii) Shri Vijesh Shankerlal Raval @ Vijay (iv) Ms. Nita Parmar (v) Shri Promodgiri Premgiri Goswami @ Rajubhai Goswami (vi) Shri Jitendrakumar Dhanjibhai Rokad (vii) Shri Bhimani Mehul Rasikbhai (viii) Shri Vipul Joshi and (ix) Shri Dilipgiri Premgiri Goswami. 53. All the noticee were also made liable to penalty to be imposed under the provision of 112(b), 114AA and 117 read with section 123 of the Customs Act,1962. In all, there were 26 notices in the show-cause notice. The show-cause notices also accompanied with list of relied upon documents (RUB) to the show-cause notices containing the Panchama drawn. Item Nos. 37 and 38 on which heavy reliance relevant is placed, with regard to Panchama dated 27.06.2019 and 28.06.2019 drawn for examination of the data containing the pen drive withdrawn from the residential premises of Ms. Nita Parmar wherein it is stated that retrieved documents are available for inspection. The petitioners filed reply in the month of March 2020 to the show-cause notice dated 24.12.2019 wherein, request was made for cross- examination of Ms. Nita Parmar on the ground that the entire case was based on the documents retrieved from the pen drive seized from the residential premises. Cross-examination was also sought of Mr. Rutugna Trivedi who is the petitioner of Special Civil Application No. 488 of 2023. 54. It was also contended in the reply that a request was also made for supply of the relied upon documents. 55. It appears that thereafter the personal hearing was fixed on 17.06.2021 reiterating the request to cross examine the two witnesses viz. Ms. Nita Parmar and Mr. Rutugna Trivedi. 56. Thereafter, it appears that a reply was filed on October 12,2021 when the matter was adjourned for further hearing by the adjudicating authority. Another reply was filed on November 30, 2021 seeking cross examination of the concerned persons. 57. Ms. Nita Parmar and Mr. Rutugna Trivedi. 56. Thereafter, it appears that a reply was filed on October 12,2021 when the matter was adjourned for further hearing by the adjudicating authority. Another reply was filed on November 30, 2021 seeking cross examination of the concerned persons. 57. The adjudicating authority has however issued the Order-in-original on 29.11.2021 confiscating the Gold alleged to have been smuggled pursuant to the show cause notice and demanding the duty, interest and penalty, as stated in the impugned order, in relation to each of the petitioner. The same is not reiterated and elaborated for disposal for sake of brevity. 58. It is not in dispute between the parties that there is an alternative efficacious remedy available to challenge the impugned Order-in-original whereby, the adjudicating authority has ordered to confiscate the Gold alleged to have been smuggled by the petitioners or with the help of the petitioners on the basis of the findings arrived after elaborately discussing the evidence in detail. The petitioners have mainly rebutted the preliminary objection raised on behalf of the respondent-authority for entertaining these writ petitions on the ground of having alternative remedy and violation of principle of natural justice as the respondent-authority has not decided the application/request of the petitioners to grant cross-examination of two co-noticee viz. Ms. Nita Parmar and Mr. Rutugna Trivedi and rejected such request in the impugned order. Another ground for preferring these petitions with request to entertain the same is for not supplying the relied upon documents in the pend drive which is according to the petitioner is a basis for passing the impugned order. Heavy reliance is placed on the decision of this Court in case of Mahek Glazes Pvt. Ltd vs. Union of India (supra) wherein it is held by this Court that request for cross-examination is required to be dealt with in a separate order and cannot be decided along with adjudication order and only on that ground, the order- in-original was set aside remanding the matter back to the adjudicating authority to pass a separate order with a request to examine the request of the petitioners to supply the certain documents. Apart from relying upon the decision of this Court in case of Mahek Glazes Pvt. Ltd vs. Union of India (supra), heavy reliance was placed on the decision of the Delhi High Court in case of Krishna (supra) wherein also it is held that rejection of request for cross examination of witness on the ground that the request was made casually and few of the witnesses were interlinked was contrary to the decision of the Hon’ble High Court in case of Kanungo & Company vs Collector Of Customs And Ors reported in 1983 13 ELT 1486 . It was therefore submitted that denial of right of cross- examination of such witnesses amounts to violation of principle of natural justice and the petitioners are entitled to cross- examination by the adjudicating authority. 59. It also appears from the record that after the hearing which took place on 12.10.2021 and submission of reply on behalf of the petitioner, no further hearing was scheduled by the adjudicating authority and the impugned order was issued on 29.11.2021 without deciding the request of the petitioners to grant cross- examination. 60. The decision relied upon by the petitioners in support of the request for cross-examination resulting into violation of principle of natural justice as well as there are also decisions relied upon on behalf of the respondent that whether to grant cross-examination to the petitioners is a matter of discretion of the adjudicating authority which can be considered in the Order-in-original. Thus, there are two sets of decisions appearing on the record of these petitions wherein in one of the set it is held that granting of cross-examination is violation of principle of natural justice whereas on the side of the respondent, the decision cited clearly shows that when there is an alternative efficacious remedy is available to the petitioner, such ground can be taken by the appellate authority as the appellate authority is nothing but an continuation of the original proceedings. 61. Therefore, it would be necessary to refer to the various decisions vis-a-vis facts emerging from the record as to in the facts of the case whether the petitioners can raise such issue of cross- examination, supply of documents before the appellate authority or not. 62. 61. Therefore, it would be necessary to refer to the various decisions vis-a-vis facts emerging from the record as to in the facts of the case whether the petitioners can raise such issue of cross- examination, supply of documents before the appellate authority or not. 62. It would be necessary therefore to refer to the decisions which are relied upon on behalf of the respondent in the affidavit-in-reply inasmuch as the facts also remains that the petitioner have been informed about the right to have inspection of the documents which are part of the pen drive along with show-cause notice. The petitioners were also required to exercise such right. 63. In the impugned order, the adjudicating authority has discussed the documents relied upon which are retrieved from the pen drive the petitioners therefore very well can request for the same before the appellate authority. The facts of the case are so gross to the effect that the petitioners are involved in smuggling of Gold in contravention of the provision of the Customs Act. Therefore, without going into merits of the case, it would be in the interest of justice to relegate the petitioners to avail the alternative efficacious remedy as held by the Apex Court from time- to- time and to enable the petitioners to raise all the contentions before the appellate authority in the appeal which may be filed by the petitioners. It would be also necessary to mention here that the adjudicating authority had already taken a decision to deny the cross-examination to the petitioners of the co-noticee. Even if the matter is sent back to the adjudication authority, it would be a futile exercise for the adjudicating authority to again pass a separate order rejecting the demand for cross- examination. Therefore, we are of the opinion that such a course would result into an empty formality so as to comply with the principles of natural justice. Even if the matter is remanded back to the adjudicating authority, there is a fait accompli of rejection of the request of the petitioners as stated by the adjudicating authority in the impugned order and no fruitful purpose would be served except setting aside the order and putting the clock back for such empty formality. Even if the matter is remanded back to the adjudicating authority, there is a fait accompli of rejection of the request of the petitioners as stated by the adjudicating authority in the impugned order and no fruitful purpose would be served except setting aside the order and putting the clock back for such empty formality. If the appellate authority is of the opinion that the cross-examination is required to be given to the petitioners on the basis of the contention which may be raised by the petitioners after considering the observations made by the adjudicating authority in the impugned order, it is for the appellate authority to consider such request by calling for remand report from the adjudicating authority to that extent. However, simply because the right of cross-examination is denied to the petitioners, we are of the opinion that the matter should not be remanded back to the adjudicating authority in the facts of the case which are glaring and resulting into the impugned adjudication order which is liable for challenge before the appellate authority. 64. We have refrained ourselves from going into merits so as to enable the petitioners to contend all the contentions which are raised in these petitions otherwise, the petitioners would contend that their rights are jeopardized by any observation made by this Court. 65. In view of the above, these petitions are not entertained as though it may be maintainable under Article 226 of the Constitution of India with liberty to the petitioners to approach to the appellate- authority. The time spent by the petitioners before this Court be considered as bona fide by the appellate authority if the petitioners file appeals before the appellate authority in accordance with law within four week from today without raising an issue of delay. The petitioners are at liberty to raise all the contentions which are raised in these petitions before the appellate authority which shall be considered by the appellate authority in accordance with law. 66. With the aforesaid observations, the petitions are disposed of. Notices are discharged. Interim relief stands vacated forthwith. 67. Learned advocate Mr. Hardik Modh at this stage requested for extension of interim relief which was granted by this Court for a period of four weeks. Considering the request the same interim relief granted by this Court shall continue to operate till 31.07.2024.