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S.S. Sekhon, Member (T)
1. These four stay applications and four appeals arising out of the order in original passed by the Commissioner of Customs, Bangalore are taken up for final order after granting waiver of pre-deposit of the amounts and stay of recovery of the same as the issue in these appeals lie in a narrow compass and the matter can be decided finally.
2. We have heard Shri B.V. Kumar, learned Counsel for appellant Syed Saleem, and Shri B. Kumar Sr. Advocate assisted by Shri M. Rajan, Advocate for the other appellant, and Shri S. Kannan, and Shri S. Sudarsan, learned DRs for the department. The learned DRs have submitted letter dated 7-9-2000 addressed to the JDR by Shri A.P. Sudhir, Commissioner of Customs, Bangalore and another letter dated 20-9-2000 addressed to the SDR by Shri K.S. Bhatti, Deputy Commissioner of Customs, HQ, Preventive Bangalore.
3. We have considered the submissions made and also the material on record and find that:
(a) It is an undisputed fact that the appellant have sought for cross examination of the Investigating Officeis vide their replies to the show cause notice. The comments given by the Bangalore Com-missionerate Officers vide their above cited letters had admitted this fact. Very strangely these letters convey that even though request for cross examination was made in the written reply to the show cause notice, the request was not repeated at the personal hearing and/or when the reply was submitted alter the personal hearing. Shri B.V. Kumar, learned Counsel brings to our attention an affidavit of one Mrs A.K. Zarina, Junior Advocate who had appeared along with Shri B.V. Kumar, Advocate at the personal hearing wherein she has solemnly stated that the Commissioner of Customs, Bangalore did not summon the Investigating Officers for cross-examination and on the insistence of the Advocate, one Mr Manjunath, Supdt. of Customs (Prev.) Headquarters was called who categorically stated that he was not ready for cross-examination as he did not study the relevant papers/files and thereafter, the Commissioner of Customs, had requested Shri B.V. Kumar to proceed with the case and at the instance of the Commissioner of Customs, Shri B.V. Kumar proceeded with the case. She further solemnly stated that the Commissioner of Customs did not adjourn the case or grant another opportunity for cross-examination of the Investigating officers. This is an admitted position by the Commissionerate officers that request for cross-examination of the Investigating Officers have been made and their stand that the plea for cross-examination was not repeatedly made cannot be accepted. It was for the adjudicator to have read the written reply and passed order on the request made for cross-examination and not mulled it over in his adjudication order. In view of the Affidavit placed on record by Shri B.V. Kumar in this case, we have no hesitation to come to a conclusion that the adjudication proceedings and the order thereafter has been hustled through without cross-examination thereby violating the principles of natural justice. The order should be set aside on this ground alone and remanded back in the interests of justice for re-adjudication with a clear direction for cross-examination of the witnesses and/or investigating officers as required by the defence should be granted and/or reasons recorded in the order as to why such request was not accepted.
(b) While hearing this case, a question was put from the Bench pointing out that in the order of adjudication at internal page 36 thereof has recorded that the goods totally valued at Rs. 2,00,37,350/- were confiscated under the provisions of Section lll(d) of the Customs Act, 1962. However, since the said goods had been disposed of after taking necessary permission as required under Section 110 of the Customs Act, and the sale proceeds of Rs. 1,47,55,415/- was appropriated to the Govt. of India. The learned DR was asked to submit whether this order grants an option to redeem the goods or whether the goods have been confiscated absolutely to which, the learned DR candidly replied that it does not say so. To our mind, the said order appropriating the sale proceeds after obtaining permission under Section 110 of the Customs A.ct, 1962 is not correct in law as it is only Section 126 of the Customs Act which provides that the officer adjudging confiscation shall take and hold possession of the confiscated goods and the confiscated goods shall only vest with the Central Govt. and it does not provide for appropriation of the sale proceeds. Sale proceeds can be allowed for confiscation under Section 121 of the Customs Ad, 1962. Order of appropriation without granting option of redemption or the nature of confiscation whether it is absolute confiscation or otherwise is also bad in law especially when it is an order without giving any reasons as to why a particular course of order of confiscation is resorted to.
3. In view of our above findings, we set aside the order of the Commissioner of Customs and remand the matter to him far re-adjudication as per law.