ORDER
K. Sreedharan, J. (President)
1. These appeals are at the instance of M/s. Kashyap Automobiles and Shri Raj Singh Hooda against whom the adjudicating authority passed Order No. 62/JKS (DRI)/96 dated 13.12.96. Operative portion of that order is as follows:
Having regard to the facts and circumstances of the case, I confiscate the seized car under the provisions of Section 111(d) & 11(m) of the Customs Act, 1962. However, I give Shri Umesh Munjal an option to redeem the same on payment of redemption fine of Rs. 4 lakhs (Rupees four lakhs only) and the payment of the duty amounting to Rs. 82,783 in terms of provisions of Section 125(2) of the Customs Act, 1962 within a period of 30 days from the receipt of this order. In case he is not interested in getting the car redeemed, he should surrender the same to the Customs authorities within the same period.
I also impose the following penalties under Section 112 of the Customs Act, 1962:
Shri Raj Singh Hooda -Rs. 2 Lakhs (Rupees Two Lakhs only) Shri Kashyap Automobiles -Rs. 1 Lakh (Rupees One Lakh only) Shri Rajinder Kashyap -Rs. 50,000 (Rupees Fifty thousand only) 2. This order was upheld by Commissioner of Customs (Appeals) vide Order-in-Appeal No. 159-162/AIR/98 dated 7.9.98, as against the appellants herein.
3. As per the order of the adjudicating authority Mr. Rajinder Kashyap was also made liable for penalty of Rs. 50,000 under Section 112 of the Customs Act. He was exonerated by the Commissioner of Customs (Appeals). Against that part of the order, Department has not preferred any appeal. So in this judgment, we are concerned with the adverse order passed against M/s. Kashyap Automobile and Shri Raj Singh Hooda.
4. The short facts necessary for disposal of these appeals are as follows:
A car manufactured by BMW was got imported. The vehicle was described as belonging to the category of 316(i) in the Bill of Entry. Its engine capacity was also declared as 1596 cc. The value was declared at 25,752 DM. That vehicle was cleared after inspection by Customs Authorities. Chasis No. of the vehicle was correctly noted as WBA-CA-42040-AN-34876. Subsequent to the clearance of vehicle, Customs Authorities got information that the imported vehicle was of Model 318iA with engine capacity of 1796 cc. On their inquiry its value was found to be 27,170 DM. Information so gathered revealed that car was got cleared by declaring a lesser value and wrongly stating the model in the Bill of Entry. On this basis a show cause notice was issued to the appellants herein and Mr. Rajender Kashyap. On receipt of the show cause notice, the appellants prayed for supply of documents relied on by the Department to come to conclusion that the vehicle was of Model 318iA having the engine capacity of 1796 cc which had the value of 27170 DM. Those documents were not made available to the appellants. Without giving copies of those documents adjudicating authority passed the order quoted earlier. Even though this aspect was highlighted by the appellants before the Appellate Commissioner, this aspect is not seen to have been dealt with. Ld. Counsel representing the appellants attacked the orders of the adjudicating authority as well as of the Appellate Commissioner on the ground that they were passed in violation of the principles of natural justice.
5. Appeal No. C/13/99 was filed by M/s. Kashayap Automobile. When that appeal came up before the Bench it was adjourned to be taken alongwith the appeal which was to be filed by Shri Raj Singh Hooda as well. Subsequently, Shri Raj Singh Hooda filed Appeal No. C/121/99 with a petition to condone the delay caused in filing the appeal. Since Appeal No. C/13/99 had already been filed within the time fixed by law and the same order is challenged in Appeal No. 121/99-A, we condone the delay in filing the appeal.
6. Appellants in this appeal have filed application for dispensing with the pre-deposit of the amounts ordered by the authorities below. When those petitions came up, we heard Ld. Counsel representing the appellant in detail. On the facts and circumstances of this case, we feel that an order on the application to dispense with the condition of pre-deposit and delay in disposal of the appeal will only go to prejudice the interest of the appellants and of the Revenue. An early disposal of the appeals will be in the interest of justice. Since the main contention of the appellant is that impugned order happened to be passed in violation of the principles of natural justice, we feel that the appeal itself can be disposed of by remanding the order to the adjudicating authority for passing a fresh orders in compliance with the principles of natural justice i.e. after supplying the document relied upon by the Department. After furnishing the copies of the document relied upon or after allowing the appellants an opportunity to inspect the original documents. Final order should be passed in compliance with the principles of natural justice after affording reasonable opportunity of being heard.
7. The above course we are adopting in the following circumstances:
Vehicle imported was got cleared as if it was BMW 316i with a capacity of 1596 cc. The vehicle imported was having Chassis No. WBA-CA-42040-AN-34876. It is common knowledge that chassis number of the vehicle is not easily alterable. Appellant has no case that the vehicle imported was not having the above-mentioned number on the chassis. Department relies on documents issued by the manufacturers of BMW vehicles to establish that vehicles with chassis number beginning with CA42 belong to the category of 318i(A) having an engine capacity of 1796 cc. As per the price list, such a vehicle costs 29,170 DM. We are clear in our mind that emblem of the car is not a conclusive proof of its engine capacity or the model. Appellant asked for the documents which were relied on by the Department having the effect, or which establish that chassis numbers beginning with CA 42 relate to Model 318iA having a price of 29,170 DM. The request of the appellants was dealt with by the adjudicating authority in the following way in para 30 of his order:
30. Shri M.L. Sobti, Advocate appeared for personal hearing on 17.10.96 on behalf of M/s. Kashyap Automobiles and Shri Rajinder Kashyap and again requested that original of the specification technical data may be shown to him for inspection so that he can proceed with the arguments in the case. He also handed over a letter from Shri J.S. Agarwal, Advocate for Mr. Raj Singh Hooda requesting for inspection of original documents relied upon by the Department and to supply them the copies of the same. Shri Sobti was informed that the personal hearing was being postponed to 19.11.96 when either the original documents will be made available for inspection to him and Mr. J.S. Aggarwal or they will be asked to proceed to defend their case on the presumption that original documents are not available with the Department.
This approach made by the adjudicating authority, we are afraid cannot be sustained. He should have made available the documents to Ld. Counsel or the parties in order to enable them to make an effective defence. On account of failure on the part of the adjudicating authority, we feel the parties were denied the opportunity to make an effective representation. Therefore, we are constrained to set aside the order of the adjudicating authority as also the order passed by the Appellate Commissioner. We remand the entire issue to the adjudicating authority to pass fresh order in accordance with the law and in the light of the observations made earlier in this judgment after affording a reasonable opportunity of being heard to the appellants. Appeals are disposed of in the above terms.
