N ANIL KUMAR Vs. COLLECTOR OF CUSTOMS AND CENTRAL EXCISE
LAWS(CE)-1986-9-7
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on September 29,1986

Appellant
VERSUS
Respondents

JUDGEMENT

S.Kalyanam, - (1.)THIS appeal is directed against the order of the Addl. Collector of Customs & Central Excise, Madurai dated 7-5-1986 absolutely confiscating Indian currency of Rs. 44,930/-under Section 121 besides a penalty of Rs. 5,000/- under Section 112 of the Customs Act, 1962 (hereinafter referred to as the Act). At the outset Shri Subrmaniam, the learned consultant and Shri Peter, the learned counsel for the appellant urged a preliminary legal point against the legal sustanability of the impugned order. It was urged that the seizure in the present case was effected on 26-8-1985 and on 31-8-1985 itself the appellant sent a representation to the Collector with a copy to the Assistant Collector of Customs & Central Excise, Tuticorin requesting for copy of mahazar and the appellant's statement. Since this representation was not responded to by the department and copy of the mahazar and statement of the appellant were not furnished to the appellant, the appellant sent a reminder on 25-11-1985 to, the Collector with a copy to the Assistant Collector of Customs & Central Excise, Tuticorin having jurisdiction and on this letter of reminder dated 25-11-1985 the appellant received a cryptic reply from office of the Collector of Customs & Central Excise, Madurai dated 26-11-1985 to the effect that the appellant could wait the receipt of the show cause notice under law within 6 months from the date of the seizure and make a detailed representation in reply to the same to the adjudicating authority. Show cause notice it was contended placed reliance on the mahazar dated 26-5-1985 and the statement of the appellant dated 26-8-1985, yet merely permitted the appellant perusal of the same in the office of the Addl. Collector of Customs & Central Excise, Madurai on any working day/hours fixing a prior appointment. In the circumstances it was contended that the impugned order suffers from gross violation of the principles of natural justice inasmuch as the copies of the documents relied upon by the department under the impugned order set out in the show cause notice were not furnished to the appellant inspite of repeated requests.
(2.)Heard Shri Krishnan, the learned DR. The learned DR with characteristic fairness submitted that in all the cases copies of the mahazar and statements recorded from the appellants on which reliance is placed by the department are furnished before the issue of the show cause notice and unfortunately in this case inspite of specific request copies of the documents have not been furnished. The learned DR therefore urged that the matter may be remanded.
The records clearly reveals that inspite of specific request by the appellant by communication dated 31-8-1985 and a reminder dated 25-11-1985 requesting for copy of the mahazar and statement of the appellant they were not furnished to the appellant. It is fundamental and an elementary principle of natural justice that the department should make available copies of the documents as far as practicable to the party against whom the said documents are sought to be used or relied upon. Inspite of the fact that the appellant specifically asked for the copies of the mahazar and his statement by his letter dated 31-8-1985 and reminder dated 25-11-1985 they were not furnished to him. Curiously enough the show cause notice dated 7-2-1986 clearly states that reliance is placed on the mahazar dated 26-8-1985 and the statement of the appellant dated 26-8-1985. The show cause notice merely permits inspection of the said documents by the appellant at the office of the Addl. Collector of Customs, Madurai "on any working day/hours preferably after fixing a prior appointment with this office". When principles of natural justice demands that copies of documents on which reliance is placed by the department against the party should be given to the party concerned, non-furnishing of the same and that too after repeated request by the appellant would be flagrant violation of the principles of natural justice and disregard of the fundamental procedure of adjudication. While the show cause notice clearly states that reliance is placed against the appellant on the said documents yet copies of the documents have not been furnished to the appellant and the appellant is merely permitted perusal of the same by courtesy of the department and that too on prior appointment. The procedure adopted by the adjudicating authority is totally unfair to say the least of it. In the reply to the show cause notice, the appellant has stated as follows :

"It is relevant to submit in this connection that the copies of the mahazar and statement relied upon against him have not so far been supplied to him and the petitioner has become aware of the contents therein only from the show cause notice".

Inspite of this, it is most surprising that the adjudicating authority did not think it proper to furnish copies of the said documents before commencement of the adjudication. Justice must not only be done, it must seen to be done and in the facts and circumstances of this case, non furnishing of the said copies to the appellant inspite of repeated requests for the same is against all accepted cannons of natural and elementary justice and fair play. The impugned order passed in dis-regard of the elementary doctrines of fair procedure "would be no decision within the meaning of Statute" and would be "contrary to the essence of justice" to borrow the felicitous phrase of Lord Selbourne. Therefore, without going to the merits of this case, I set aside the impugned order appealed against and remit the matter back for reconsideration after furnishing the appellant with copies of the said documents and affording him an opportunity of being heard. Since a issue relates to a seizure dated 26-8-1985 and involves a seizure of currency of Rs. 44,930/-, the Additional Collector of Customs, Madurai is directed to take up and dispose of this after within 3 months after receipt of the copy of this order.



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