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Judgment
By way of this petition, the petitioner has prayed for following relief:-
(i) by an appropriate, writ, order or direction to quash and set aside the proceedings initiated by way of show cause notice dated 6.10.2017 as the
same is issued in contradiction to departmental circular/instruction dated 25.4.2016 and 13.10.2016 by respondent No.2.
(ii) Without prejudice to above by an appropriate, writ, order or direction to direct the respondent No.2 to direct his office, jurisdictional office,
respondent No.3 office to supply resumed unrelied upon documents and RTI Documents and complete records of the case in the interest of justice
to the petitioners to submit appropriate defence reply and to request for cross examination of desires persons.
(iii) by an appropriate, writ, order or direction to grant reasonable time to submit the defence reply after providing documents under Rule-24A and
documents requested in prayer No.2.
Counsel for the petitioner has contended that show cause notice was issued. The petitioner made representation for supply of the documents
which sought to be relied by the department but the same was not accepted inspite of decision of this court in PGO Processors Private Ltd. vs.
Commissioner, C. Ex. 2000 (122) ELT 26 (Raj.) and decision of Supreme Court in Kothari Filaments vs. Commissioner of Cus. (PORT),
Kolkata 2009 (233) ELT 289 (SC) wherein it has been observed as under:-
Mr. J.K. Srivastava, learned Counsel appearing on behalf of the appellant, submitted that before the impugned order was passed by the
authorities of the Customs Department, admittedly an enquiry was conducted at various places. However, the documents collected during the said
enquiry were not supplied to them although reliance was placed thereupon and, thus, the principles of natural justice have been violated.
The statutory authorities under the Act exercise quasi-judicial function. By reason of the impugned order, the properties could be confiscated,
redemption fine and personal fine could be imposed and in the event an importer was found guilty of violation of the provisions of the Act. In the
event, a finding as regards violation of the provisions of the Act is arrived at, several steps resulting in civil or evil consequences may be taken. The
principles of natural justice, therefore, were required to be complied with.
The Act does not prohibit application of the principles of natural justice. The Commissioner of Customs either could not have passed the order
on the basis of the materials which were known only to them, copies whereof were not supplied or inspection thereto had not been given. He, thus,
could not have adverted to the report of the overseas enquiries. A person charged with mis-declaration is entitled to know the ground on the basis
whereof he would be penalized. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he
is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an
effective reply.
In view of the aforementioned settled legal principles, there cannot be any doubt whatsoever that the principles of natural justice have been
violated in this case.
He also relied upon the decision of this court in M/s. Patron Detective and Security Service (D.B. Central/Excise Appeal No.5/2014) decided
on 11.10.2017 wherein it has been held as under:-
This Court while admitting the appeal on 30.03.2015, framed following substantial question of law:- ""(1) Whether non supply of resumed
records which are relied upon in SCN and adjudication order constitute violation of principles of natural justice, when not provided in spite of
preliminary objections and request letters?
(2) Whether onus of proving classification was on the part of appellant when all the resumed and relied upon documents were not supplied to him
in spite of repeated requests?
It is well settled principle of law that the person who is to take an action is required to supply basic documents, which sought to be relied upon.
The documents though referred in the show cause notice were not given to the assessee by the Tribunal.
In that view of the matter, we remit back the matter to the first authority. The petitioner will appear before the first authority on 06.11.2017
and authority will settle the matter within a period of four weeks and reply after the documents are supplied to the appellant. Reply will be filed if
required within the period of three weeks from receipt of the documents. Therefore, issue No.1 is answered in favour of assessee.
He also relied upon the circular No.IV/16/312/2006-CZO dt. 20.9.2006 wherein it has been provided as under:-
In this connection, your kind attention is invited to Board''s Circular No.42/88-CX.6 dated 24.5.1988 and No.48/88-Cx.6 dated 10.06.1988
as per which the documents/records which are not relied upon in the Show Cause Notice are required to be returned under proper receipt to the
persons from whom they were seized. Further, at the time of issue of Show Cause Notice, a clause may be incorporated in the Show Cause
Notice stating that un-relied upon documents/records may be collected by the persons within 30 days of receipt of Show Cause Notice. The
Show Cause Notice should also include the name and designation of the officer responsible for returning such documents/records.
He also relied upon the Circular No.207/09/2006-CX. dt. 8.9.2006 wherein it has been provided as under:-
In this regard, your attention is invited to the Board''s Circular No.42/88-CX, dated 24.05.1988 and No.48/88-CX.6 dated 10.06.1988. As
per these circulars, the documents/records which are not relied upon in the Show Cause Notice are required to be returned under proper receipt
to the persons from whom they are seized. I wish to reiterate compliance of these instructions. In fact, the Show Cause Notice itself may
incorporate a clause that unrelied upon records may be collected by the concerned persons within 30 days of receipt of the Show Cause Notice.
The designation and address of the officer responsible for returning the relied upon records should also be mentioned in the Show Cause Notice.
He also relied upon the Circular No.42/88-CX.6, dt. 24.5.1988 wherein it has been provided as under:-
Once the show cause notice is issued to the party the documents/records, which have not been relied upon, may be returned to the party
under proper receipt.
The above measures would help substantially reduce the time taken by parties for inspection of documents.
He submitted that in the eventuatlity the order is passed, the appellate authority will not entertain the appeal without depositing the amount.
Prima facie, the issue is covered by the decision of the Supreme Court and it was binding upon the officer to follow the said decision, otherwise
any damage to the petitioner will be recovered from erring officer for not following the judgments which are binding and it will be open for the court
to pass an appropriate order for recovery of the amount from the officer.
We deprecate the practice of the officer in increasing litigation in the High Court on arbitrary plea. We observe that this exparte order is passed
in view of the fact that inspite of representation made for supplying documents, the same has not been supplied. The officer will now act in
accordance with law and will not proceed arbitrarily, without giving proper opportunity to the petitioner.
The petition stands disposed of.