JUDGMENT
V.B. Bansal, J.
(1) Haren P. Chowksey, petitioner, has filed this writ petition under Articles 226 and 227 of the Constitution of India with a prayer to issue a writ of certiorari or any other writ and to set aside the order passed by the Customs Excise & Gold (Central) Appellate Tribunal,respondent No. 4.
(2) The Additional Collector of Customs, respondent No. 3, vide orderdated 26.2.1991 had imposed a penalty of Rs. 3,00,000.00 upon the petitioner which on appeal was reduced to Rs. l,00,000.00 by respondent No. 4 video order dated 8.9.1922.
(3) An information was received by the Directorate of Revenue Intelligence that a German Make Mercedez Benz car bearing Registration No.DBB-782 being used by Shri Shally Thapar, residing at E-30, GreaterKailash-11, New Delhi, was neither legally imported into the country nor was any duty paid on it at the time of its importation into the country. Detailed enquiries were made which revealed that this car was registered at Delhi on the basis of a no-objection certificate issued by the Bangalore Regional Transport Authority and it was further revealed that it was earlier registered having registration No. Wme 9290 in the name of one Shri Rupan Roy and that this aforesaid registration related to a Premier Padmini car and not a Mercedes Benz car.
(4) Accordingly, Shri Shally Thapar was summoned and examined,who inter alia disclosed that he was having no documents as regards the legal importation of the said into India except the registration book. The car was seized by the Directorate of Intelligence on 6.1.1989 under the reasonable belief that the same was illegally imported into the country and, therefore,liable to confiscation. In his statement, it was disclosed by Shri Shally Thapar that this car was purchased by him from Shri Haren P. Chowksey, are silent of Bombay for a sum of Rs. 4,00,000.00, which was paid in cash and that in the registration book the name of the earlier owner was written as Shri Rupan Roy, but he did not know the said person. It was also stated by him that in his presence the registration papers of the car bearing earlier registration No. Cau 4352 were handed over by Shri Haren P. Chowksey to Shri Inder Pal Singh @ Palli, who got the same transferred to Delhi. It was also claimed by him that he sighed the car transfer form on the basis of which car was transferred in his name. It was also claimed by Shri Shally Thapar that he had maintained accounts in which there is a mention about the payment of Rs. 4,00,000.00 to Shri Haren P. Chowksey and this amount has also been shown by him in his income tax returns. It was further stated by him on 5.4.1989 in his statement under Section 108 of the Customs Act that he did not have any other document to show that this car was purchased by him from Shri Haren P. Chowksey.
(5) Statement of Shri Inder Pal Singh @ Palli was also recorded, who had inter alia stated that he got the registration transferred to Delhi but declined to get the ownership changed since proper documents in respect of the import of the car were not shown to him.
(6) Statement of Shri Haren P. Chowksey was also recorded under Section 108 of the Customs Act, in which it was inter alia stated by him that he was carrying on the business of auto consultancy as well as sale-purchase and hiring of new and second-hand cars on commission basis in Bombay and that he had only after examination of the car gave opinion to Sbri Shally Thapar that it was a good car. which he could purchase. He denied having sold the car to Shri Shally Thapar or that he was in any connected with its ownership or import.
(7) All the facts were considered and show cause notice was issued to Shri Rupan Roy, Shri Haren P. Chowksey, petitioner, Shri Shally Thapar and Shri Inder Pal Singh @ Palli. Reply to the show cause notices were filed by the petitioner and after hearing the Additional Collector of Customs imposed a penalty of Rs. 3,00,000.00 on the petitioner. The order was challenged by him before the Tribunal, respondent No. 4, wherein the amount of penalty was reduced to Rs. 1,50,000.00.
(8) The grievance of the petitioner has been that there was no material with the Additional Collector of Customs, respondent No. 3, so as to hold that the petitioner was in possession of the car in question or that it was sold by him and that the penalty of Rs. 1,50,000.00has been imposed upon him without there being any material on record. It has also been the case of the petitioner that the main reliance against the petitioner was upon the testimony of Shri Shally Thapar, who, in fact, has been an accomplice, as per the case of the respondent, and no opportunity was given to him to cross examine the aforesaid Shri Shally Thapar, on account of which the order could not be sustained and, thus, this petition.
(9) Answer to the show cause notice was not filed by the respondents and Rule was issued on 26.2.1993. No counter affidavit has been filed by the respondents even thereafter.
(10) I have heard Ms. Sangeeta Nanchahal, learned Counsel for the petitioner and Shri Rajiv Chopra, learned Counsel for the respondents. 1have also gone through the record.
LEARNED Counsel for the petitioner has submitted that the petitioner was not the registered owner of the car nor was it seized from the petitioner.She has further submitted that no receipt has been produced by Shri Shally Thapar so as to show that a sum of Rs. 4,00,000.00 was paid by him to the petitioner and that the documentary evidence available with Shri Shally Thapar has also not been produced, inasmuch as, as per his own claim, had maintained books of accounts and also filed income tax returns, indicating that he had purchased the car for a sum of Rs. 4,00,000.00 from the petitioner and this record has also been withheld. She has further submitted that a request was made by the petitioner before the Additional Collector of Customs for permission to cross-examine Shri Shally Thapar so as to challenge his claim of having purchased the car from the petitioner, which was not allowed and, similarly, this request was not acceded to even by theCustoms, Excise & Gold (Control) Appellate Tribunal, respondent No. 4.She has, thus, submitted that the petitioner has been highly prejudiced on account of this refusal and, thus, submitted that the principles of natural justice have not been complied with in the instant case on account of which grave injustice has been done to the petitioner. A prayer has. therefore, been made that the impugned order should he set aside and the Additional Collector of Customs be directed to re-hear the matter after giving an opportunity to the petitioner to cross-examine Shri Shally Thapar.
(11) Learned Counsel for the respondents has, on the other hand,submitted that there was no necessity of giving an opportunity to the petitioner to cross-examine Shri Shally Thapar in view of the material and evidence already on record. According to him, the petitioner has not denied that the car was inspected by him and that earlier also he had sold two imported cars to Shri Shally Thapar. He has further submitted that Shri Inder Pal Singh @ Palli has also made a statement that he was deputed by the petitioner for getting the registration of the car transferred from Bangalore to Delhi and that this evidence, coupled with the statement of Shri Shally Thapar. was sufficient for the Additional Collector of Customs as also the respondent No. 4, to come to the conclusion that the car, in fact, was sold by the petitioner, who did not possess any evidence to show that this car was legally imported into the country. He has, thus, submitted that the penalty of Rs. 1,50,000.00 has rightly been imposed on the petitioner and prayed that the writ petition may be dismissed.
(12) There can possibly be no dispute that the concept of fair play in action must depend upon the particulars of individual case and if the credibility of a person who justifies or gives information is in doubt, the statement has to be tested by way of cross-examination, which is inevitable.It is also well established that principles of natural justice do not require that the person who has given information must be examined in the presence of the person concerned against whom that statement is to be relied upon. The material in the present case has to be examined keeping in view the afore-said facts.
(13) It is the admitted case of the parties that the petitioner was not in possession of this car when it was seized, which, in fact. was seized by the competent authority from Shri Shally Thapar. The statement of the petitioner under Section 108 of the Customs Act was recorded in which it was specifically pleaded by him that he was not the owner of this car nor was it sold by him to Shri Shally Thapar. Thus, the onus was on Shri Shally Thapar or in any case on the authorities of the Revenue Intelligence to bring cogent and reliable material on record to indicate that, in fact, the car was in possession of the petitioner and it was be who, in fact, sold it to Shri Shally Thapar, having no proof of its valid import into the country. It is also pertinent to note that the documentary evidence available with ShriShally Thapar was not produced in Court. In these circumstances, the denial of an opportunity to the petitioner to cross-examine Shri Shally Thapar to prove his defense of being not concerned in the import of the car into India or its sale has prejudiced the petitioner and it amounts to denial of the principles of natural justice to him, on account of which the impugned order cannot be sustained.
(14) I am conscious of the fact that it is not necessary that a person must be permitted to cross-examine an accomplice so as to enable the Department to place reliance upon his statement because each case has to be decided on its own facts. However, in the instant case it is also to be noted that the form regarding giving of information of transfer of ownership of a vehicle has the name of Shri Shally Thapar, in whose name the car was to be transferred, but it does not bear the signatures of anyone from whom it was to be transferred in the name of Shri Shally Thapar. There was an affidavit of one Shri Rupan Roy to the effect that he was the owner of this car and it was not on superdari nor was it a stolen car.
(15) It is, thus, clear that the petitioner has been prejudiced in his defense on account of the refusal by the competent authority to permit him to cross-examine Shri Shally Thapar. On this short ground the petitioner is entitled to succeed.
(16) In view of my aforesaid discussion, the order dated 26.2.1991 of the Additional Collector of Customs, Delhi, respondent No. 3 imposing a penalty of Rs. 3,00,000.00 and the impugned order of Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, respondent No. 4, reducing the amount of penalty to Rs. 1,00,000.00 on the petitioner are set aside, qua the petitioner. The Additional Collector of Customs may decide the matter after giving opportunity to the petitioner to cross-examine Shri Shally Thapar. Parties to bear their own costs.