- (1.) The subject matter of challenge in the writ petition was an order dated 6th November, 2012 passed by the Additional Commissioner of Customs (Port) by which besides confiscating the goods, order was passed directing payment of penalty which insofar as the same is directed against the writ petitioner, reads as follows: "I impose a penalty of Rs. 20,00,000/- (Rupees twenty lakh only) on Shri Soumendu Sana, Asstt. Sales Manager of M/s. AFL Dachser Pvt. Ltd., and Rs. 20,00,000/- (Rupees twenty lakh only) on M/s. AFL Dachser Pvt. Ltd. under Section 114(i) of the Customs Act, 1962 for their omission and commission in the illegal attempt to export the red sanders wood, an item prohibited for export as per Foreign Trade Policy, 2009-14 read with Section 113(d) of the Customs Act, 1962." Aggrieved by the order, the writ petition was presented. The learned Trial Court dismissed the writ petition by the following order: "The Court: Heard the parties. This Writ Petition is directed inter alia against an order dated 6-11-2012 (Annexure P-8). Learned Counsel points out that the aforesaid order was passed without giving his client an opportunity to cross-examine the representative of the BSNL. This Court has gone through the order and it appears that in spite of various opportunities, the petitioner did not disclose as to who was it wanting to cross-examine. Be that as it may, this Court also notices that in the order itself, i.e., in the Order dated 6-11-2012 there is an indication that any person who felt aggrieved may file an appeal before the Commissioner (Appeals). Under the circumstances, this Writ Petition is disposed of giving liberty to the petitioner to prefer an appeal as indicated above".
(2.) Aggrieved by the order of dismissal of the writ petition, the appeal was preferred by the writ petitioner. Mr. Choudhury, learned Advocate for the appellant writ petitioner submitted that the learned Trial Court dismissed the writ petition without applying mind to the facts and circumstances of the case. He drew our attention to the following part of the impugned judgment passed by the Customs authorities which reads as follows: "Shri Soumendu Saha requested to provide the copies of cross-examination of Shri Bikash and Mehta and also requested for permission to cross-examine the BSNL officer, who had issued certificate dated 8-10-2010. Reply was sent by Asstt. Commissioner, Adjudication Cell vide letter No. S33-17/2011 Adjn. Port, dated 9-10-2012 and provided the copies of record of cross-examination. As M/s. AFL Dachser and Shri Soumendu did not name the person to whom they wanted to cross-examine in connection with the BSNL certificate, hence they were asked to provide the name. M/s. AFL Dachser and Shri Soumendu did not respond to the letter dated 9-10-2012, now it is more than 25 days, hence I have no option but to decide the case, as it is more than 1 1/2 year old case, on the basis of the record available".
(3.) Mr. Choudhury submitted that the prosecutor has relied upon the report allegedly submitted by the BSNL. The contents of the report are nothing more than an allegation and could not have been taken into account nor could be treated as evidence unless the contents of the report were proved in accordance with law. He submitted that the report has been relied upon against his client. The report was never proved. His client requested the prosecutor to permit him to cross-examine the person who had prepared the report. In reply, his client was told to disclose name of the person, he wanted to cross-examine.;