ORDER
S. Kalyanam, Member (J)
1. This appeal is directed against the order of Additional Collector of Customs, Madurai, dated 13-2-1989 imposing a penalty of Rs. 10,000/- on the appellant under Section 112 of the Customs Act, 1962, the Act for short.
2. Proceedings were instituted against the appellant and others in connection with seizure of pants cloth of foreign origin measuring 3556.8 Metres on 16-2-1984 at Thomas Mandapan, in Thirunelveli District resulting in the impugned order.
3. Shri K. Chellapandian, the learned Counsel for the appellant submitted that earlier this appeal came up before the Tribunal in Customs Appeal No. 336/86 and the Tribunal by order dated 29-10-1986 remanded the matter to the original authority for re-consideration of the issue in regard to penalty against the appellant after affording the appellant an opportunity of being heard and cross-examine witnesses after furnishing the appellant with copies of incriminating statements recorded from the persons and relied upon by the Department. The learned Counsel submitted that though summons were sent, no witness turned up with the result adjudicating authority without affording the appellant an opportunity of cross-examination decided the matter against the appellant by relying on the statements of third parties recorded behind the back of the appellant. The learned Counsel therefore, submitted that the impugned order is violative of the principles of natural justice. It was further submitted that even in the criminal prosecution against the appellant in respect of this matter launched by the Assistant Collector of Customs, Madurai before the Additional Chief Judicial Magistrate, Madurai in CC1/87 the Public Prosecutor appearing for the Customs Department conceded that there was no evidence against the appellant and on the basis of such confession, the appellant was acquitted by the Court by order dated 20-5-1987.
4. Heard Shri R. Parthasarathy, the learned D.R.
5. On going through the records, I find that the factual submission set out above and made by the learned Counsel are correct. The Tribunal initially remanded the case for giving the appellant an opportunity of cross-examination of third parties on whose statements reliance had been placed against the appellant. In the impugned order, after remand, the learned Adjudicating authority in this context has observed as under:
“S/Sri Sundarraj, Velusamy, Manuel Coreira, Sethu and Kalyani who were called upon for cross-examination did not turn up. The Advocates insisted on their cross-examination but it appeared that they are keeping away from their proceedings and as such the process could not be completed. Moreover, the case could not be kept in abeyance indefinitely merely on the non-availability of persons required for cross-examination.”
The Adjudicating authority again in the finding column in the impugned order has observed as under:
“The opportunity by cross-examination of the witnesses also was given. But the persons summoned to appear for cross-examination before me did not turn up. It was explained to Counsel L. Chandrasekaran that the persons summoned for cross-examination appeared to keep away from their proceedings and as such the adjudication process will not be completed.”
6. It is therefore, obvious from the finding of the Adjudicating authority that opportunity was not given to the appellant to cross-examine third parties on whose statements reliance was placed. It is an elementary principle of natural justice and fair play that person who is sought to be proceeded against and penalised in adjudication on the basis of third party statements should be afforded effective opportunity to challenge the correctness of the same as per law by cross-examination if he so desires. If do not turn up for cross-examination, it is open to the adjudicating authority to proceed with the adjudication without relying on those statements against the appellant given. Non-availability of witness will not be a ground to penalise the appellant in law when the appellant is entitled to an opportunity of cross-examination of third parties on whose statements reliance is placed. The proceedings are penal in nature. I also find from the judgment of the Additional First Class Chief Judicial Magistrate, Madurai dated 20-5-1987 that the Public Prosecutor in the criminal prosecution against the appellant in respect of the same subject matter has conceded that there was no case or evidence against the appellant. I am hereunder extracting the relevant portion of the judgment which is in Tamil.
I therefore, hold that the penalty levied on the appellant in the circumstances, is not sustainable in law. I do not think that useful purpose would be served by remanding the matter once again when the Department has alredy expressed helplessness in getting the witnesses for cross-examination. I am therefore, constrained, in the above circumstances, to set aside the penalty on technical grounds of law. In the result, the impugned order is set aside and the appeal is allowed.