In WRIT PETITION(L) NO.3220 OF 2020- BOM HC- Every person has right to cross-examine witness on whom reliance has been placed by Authorities: Bombay HC Justices S.V. Ganagapurwala & M.G. Sewilkar [09-06-2022]

Read Order: SAMEER SHAH V. THE UNION OF INDIA & ANR 

Mansimram Kaur

Mumbai, June 24, 2022: While observing that it is not for the authority to conclude in advance whether the cross-examination would be helpful or not or nothing fruitful would be elicited in cross-examination, the Bombay High Court has allowed a petition preferred by the petitioner against the impugned order passed by the second respondent wherein the appeal of the petitioner  to cross examine the witness was dismissed.

The Division Bench of Justice S.V. Ganagapurwala and Justice M.G. Sewilkar allowed the instant petition filed by the petitioner wherein the petitioner was seeking to quash the order dated May 8, 2020 passed by the second respondent whereby the appeal of the petitioner was dismissed. The Division Bench was of the view that it is settled principle of law that order passed without following principles of natural justice is bad in the eyes of the law. 

The factual background of this case was that the petitioner was working as as a clearing agent with Airport Sorting Authority (APSO) It was further alleged that a criminal conspiracy was hatched by one Naishad Kapadia, Mohmmad Manaswal, Ketan Kothari and others to defraud the Government of India of its legitimate revenue by causing import of Iridium Sponge. In pursuance of the same, the Iridium Sponge was imported from Singapore by one Mohammadi Manswala in the name of NBK enterprises on a grossly understated value under the cover of invoice raised by M/S Lim fa Pte Ltd or M/S Yuva International Pte Ltd.

 Based upon the purported intelligence, the officer found a speed post parcel that had arrived at APSO office under a consignment note sent by M/S Yuva International Pte Ltd. Subsequently, investigation was conducted and the statements of Naishad B. Kapadia, Yusuf Manaswala, Smt. Tasneem M. Lokhandwala, Shri Karan Kothari, Iqbal Sattur, Balu Kothare and Moiz Mohta came to be recorded under Section 108 of the Customs Act, 1962. Statement of the petitioner was recorded under Section 108 of the Customs Act, 1962. In pursuance of the investigation, show cause notice came to be issued to the petitioner and six others.  It was further alleged that except the petitioner and one Mohammadi Manaswala, all the other noticees approached the Settlement Commissioner for the settlement of the case. Consequently, the second respondent imposed a penalty of Rs 90, 05,396 on the Petitioner. It was this impugned order that was assailed by the petitioner by way of this petition. 

The Court observed that from the order of the second respondent it was clearly visible that the Adjudicating Authority placed reliance on the statement of Naishad B. Kapadia.  It was further observed that in judicial proceedings before the Settlement Commission all the above five noticees including Shri Naishad B. Kapadia accepted the charges in SCN and duty liability, interest and penalty imposed upon them was paid. It was further observed that the judgment of the Settlement Commission was based on the same set of statements including Shri Naishad B. Kapadia and other material evidence given in show cause notice.

 In view of the same, the Court observed that if the petitioner is not permitted to cross-examine the witness, petitioner will be adversely affected. It was not in dispute that except Naishad B. Kapadia, no other witness had stated anything in their statements against the petitioner. Therefore, the cross-examination of other witnesses was not at all necessary in the facts and circumstances of the case, the Court remarked. 

Additionally, the Court noted that the alternate remedy of appeal to the Appellate Tribunal under Section 127 A of the Customs Act, 1962 was available to the petitioner. However, when the principles of natural justice were violated, doors of this Court cannot be closed for the petitioner on the ground of availability of alternate efficacious remedy. It is the rights of every person to cross- examine the witnesses on whom reliance has been placed by the Authorities, the Court noted. 

Thus in light of the aforesaid observations, the Court deemed it fit to set aside the impugned order and remit the matter back to the file of the second respondent and further directions were issued to the  second respondent to permit the petitioner to cross- examine witness, Niashad B, Kapadia.  Accordingly, the writ petition was allowed.