Page 227 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] V.V. MINERAL v. COMMISSIONER OF CUSTOMS, COCHIN 617

cause notice dated 26-7-2019 was issued to the appellant to show reasons as to
why :
(i) the 13,81,000 kgs of Garnet covered by 14 shipping bills with de-
clared value of Rs. 1,94,36,277/-,
(ii) the 2,48,000 kgs of Garnet valued at Rs. 34,90,366/- brought to Cus-
toms area with intention to export contrary to prohibition imposed
by or under the Customs Act and Section 4(1) & 4(1A) of the MMDR
Act, 1957 should not be confiscated under the provisions of Section
113(d) of the Customs Act, 1962,
(iii) the 13,00,000 kgs of Garnet valued at Rs. 1,72,87,120/- covered by 16
shipping bills already exported in contravention of prohibition im-
posed by or under the Customs Act and Section 4(1) & 4(1A) of the
MMDR Act, 1957 should not be held liable for confiscation under
the provisions of Section 113(d) of the Customs Act, 1962,
(iv) a penalty should not be imposed under Section 114(i) and 114AA of
the Customs Act, 1962, and
(v) an amount of Rs. 20,884 paid towards the Testing charges should
not be demanded under Section 145 of the Customs Act, 1962.
2.3 Shri Sakthi Ganapathy, Senior Manager of the appellant company
requested for an appointment with the Commissioner vide mail communication
dated 26-7-2019 and the Commissioner granted him personal hearing on 27-7-
2019. During the personal hearing, as per the appellant, their manager informed
that 1300 MTs has already been exported and the remaining was kept in CFS and
they have submitted all the documents to show that the minerals was obtained
legally. But the Commissioner passed the impugned order without appreciating
and considering the oral submissions made by the Senior Manager of the com-
pany on 27-7-2019 and passed the impugned order on the same day and ordered
absolute confiscation of the impugned goods along with penalty. Aggrieved by
the said order, the appellant is before this Tribunal.
4. Heard both sides and perused the records.
5.1 Learned Counsel for the appellant filed the written submissions and
has argued that the impugned order is not sustainable in law as the same has
been passed without properly appreciating the facts and the law. He further
submitted that the impugned order has been passed in total violation of princi-
ples of natural justice. According to his submissions, the show cause notice was
issued on 26-7-2019 and in the show cause notice 30 days period has been given
and appellant has been called up to show cause within 30 days of receipt of it as
to why the goods sought to be exported should not be confiscated and penalty
should not be imposed. He further submitted that without taking the reply to the
show cause notice, the Commissioner passed the impugned order confiscating
absolutely the impugned goods in complete violation of the principles of natural
justice. He further submitted that the Commissioner in the impugned order has
wrongly observed that the appellant has filed written submissions whereas the
Learned Counsel stated at bar that no written submissions were filed because the
show cause notice was issued only on the previous day of the passing the im-
pugned order and 30 days had already been given to the appellant. He further
submitted that undue hurry in passing the impugned order shows that Commis-
sioner is biased in passing the impugned order which is against the fundamental
right of the appellant to contest the allegations against them and has a right of
fair hearing.
EXCISE LAW TIMES  15th May 2020  227