KIRAN OVERSEAS Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) C/Stay/412/88/MAS.: - Since we propose to dispose of the appeal itself today on a short question of law, we grant waiver of pre-deposit of duty and penalty pending disposal of the appeal today.

(2.) C/Appeal No. 320/88/MAS : - This appeal is directed against the order of Collector of Customs, Cochin, dated 18-2-1988 confirming his earlier order dated 14-11-1986. Proceedings were instituted against the appellants herein on charges of mis-declaration in regard to export of full chrome wool sheep grain finished lining leather in March, 1986 resulting in an order of adjudication at the hands of the Collector of Customs, Cochin, dated 14-11-1986 under which he ordered duty @ 15% for the entire goods covered by six Shipping bills specified in the impugned order besides levying personal penalty of Rs. 3 lakhs under Section 114 of the Customs Act, 1962 the 'Act' for short. The appellants herein preferred appeal against the original order of adjudication before the Tribunal and the tribunal on consideration of the entire matter disposed of the appeal by its order dated 14-10-1987 in Order No. 732/87. The Tribunal in its order referred to supra dealt with the question as to whether reliance placed by the Department on the report of the CLRI for fastening duty liability as well as imposing penalty was sustainable without consideration of the plea of the appellants for cross-examination of the CLRI Expert. The Tribunal observed as follows:

(3.) THE adjudicating authority having come to above finding has again chosen to uphold his earlier order imposing duty liability with penal consequences on the appellant. THE Clause appearing in the test report of the CLRI is that their "opinion is technical and academic and not intended for publicity, advertisement and legal purposes". THE CLRI cannot take advantage of this Clause in their report for avoiding cross-examination. It is well settled that if any reliance is placed on the expert report, as has been in this case by the Collector, and if the report of the CLRI expert is challenged by the aggrieved party and if the aggrieved party wants to avail of the opportunity to cross-examine the expert in question regarding correctness of the analysis, such an opportunity should be afforded to the aggrieved person. This is a basic facet of law conforming to principles of natural justice and principles of natural justice ordain that opportunity of cross-examination be afforded by Quasi-judicial authorities of third parties or experts on whose opinion reliance has been placed against the party in adjudication and this legal position is no longer res integra and is well settled by the judicial pronouncements of the Supreme Court. It is most unfortunate and regretable in the extreme that an expert body like CLRI when summoned by the Collector should choose to defy the summons and would not even find it convenient to send any of its officers. THE CLRI is a research Institution of the Government of India and particularly in matters where opinion of the CLRI by analysis of samples is sought for, the CLRI while giving the report should also make it convenient to send one of its officers to testify when summoned for cross-examination. THE condition in the test report that the same is academic and cannot be used for legal purposes obviously indicates that even if the expert opinion is found to be erroneous or wrong, the expert cannot be proceeded against for damages in any Court of Law. THE report of the CLRI cannot be taken as a conclusive piece of evidence when the same is challenged and sought to be disproved in cross-examination because the expert however competent he might be cannot claim in-falliability. Unless there is express provision in law about the conclusiveness of the report of the expert, one cannot presume the report of the expert as conclusive. THE expert opinion is only a relevant piece of evidence and it is ultimately for the Quasi judicial authorities to adjudge the correctness of the same by application of their mind having regard to the facts and circumstances of each case.