M/s. Pushkar Impex Pvt. Ltd. & Anr. vs Union of India & Ors.

An order in original dated March 28, 2018 is under challenge in the present writ petition.

Learned senior advocate appearing for the petitioners submits that, the impugned order stands vitiated by reasons of violation of principles of natural

justice. He submits that, in course of the adjudication process, the last date of hearing was January 9, 2018 when few persons were cross-

examined. The next date for cross-examination was fixed on February 2, 2018. His clients had written a letter dated January 30, 2018 stating

that, the petitioners were giving up the right of cross-examination. The petitioners wanted another date for the purpose of making their submissions

in the matter. The petitioners also informed the authorities as to the dates of hearing which would be inconvenient for the petitioner so that a

convenient date made may be fixed for hearing. He submits that, the petitioners have since been served with the impugned order without any

decision being taken with regard to the request for a personal hearing contained in the writing dated January 30, 2018. He refers to Section 124 of

the Customs Act, 1962 and submits that, the statute makes it obligatory on the part of the adjudicating authority to hear the petitioners, at least give a

reasonable opportunity of hearing to the petitioners. In the present case, the adjudicating authority did not do so. He seeks quashing of the

impugned order.

Learned advocate appearing for the respondent no.2 submits that, the procedure for adjudication is laid down under Section 122A of the Act of

1962. The adjudicating authority has the discretion to either grant or refuse an adjournment. In the present case, on several occasions, the matter

was adjourned. The adjudicating authority thought it fit and prudent not to grant any further adjournment and had proceeded to dispose of the matter

on merits. There is no infirmity in the impugned order.

It appears from the record that, consequent upon a show-cause notice dated March 31, 2016, an adjudication proceeding was undertaken. The

petitioners had replied to the show-cause notice. They had participated in the adjudication proceeding. Diverse witnesses were examined and

cross-examined in such proceeding. The last date of cross-examination was January 9, 2018. The next date for the purpose of cross-examination

of further witness was fixed on February 2, 2018. On January 30, 2018, the petitioners through their letter had given up the right to cross-examine

such witness. It, however, made a request for an opportunity of personal hearing to submit a reply in defence of their case before the adjudicating

authority. The letter also contains the dates which were inconvenient for the learned advocate of the petitioners to attend the hearing if hearing is

fixed on such dates.

Learned advocate appearing for the respondent no.2 produces the relevant records including the order-sheet. There is a noting as an order of

February 2, 2018 in the file. The request for adjournment, however, is not considered and rejected. The petitioners have not been communicated

with the order of rejection of the prayer for granting another date for hearing.

A person against whom a show-cause notice has been issued under the provisions of the Customs Act, 1962 is entitled to a reasonable opportunity of

being heard in the matter. The petitioners had participated in the proceeding. As noted above, they had made a request in their letter dated

January 30, 2018 for fixing a date when submissions could be made on their behalf. Such request was made after they had indicated that, they did

not want to cross-examine any witness on February 2, 2018. The natural course of the matter would have been to either allow the petitioners to

make their submissions on February 2, 2018 or reject the request for another date, as contained in the letter dated January 30, 2018 and intimate such

order to the petitioners. In the present case, such a procedure was not adopted.

In such circumstances, I am constrained to hold that, the impugned order suffers from vice of breach of principles of natural justice. Such order is

quashed. The adjudicating authority will proceed from the stage of the cross-examination on January 9, 2018. It will consider that, the petitioners

had given up the right to crossexamine the witness on February 2, 2018. It will afford one opportunity to the petitioners to make their submissions

before the adjudicating authority. The adjudicating authority is at liberty to dispose of the matter, in accordance with law.

W.P. No.11342 (W) of 2018 is disposed of accordingly.

There shall be no order as to costs.

Urgent website certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.