Sushil Aggarwal v. Principal Commissioner of Customs

order dated

07.02.2019 [O-I.O.No.45/2019/K.R.Madhar/ADC/EXP/ICD/TKD] is set aside, as against the petitioners. The Additional Commissioner of Customs shall proceed to hear the petitioners and also grant appropriate and sufficient opportunity to cross-examine the witnesses, whose cross-examination was sought but denied in the original proceedings, which culminated in the impugned original order. The parties shall be present before the Additional Commissioner on 15th May, 2019, who shall then proceed to act in accordance with law."

¶13In the above decision, it was also observed as to why the matters cannot be also relegated to CESTAT for cross examination, as the parties would be deprived of their right in the Appellant forum if the findings of the Additional Commissioner are affirmed.

¶14In this case,the CESTAT has followed a curious course where in respect of one of the Appellants, despite the right of cross examination having not been given, the penalty has been upheld and the appeal has been dismissed by CESTAT. However, in case of the other party i.e., Sunil Aidasani, the exact opposite approach has been adopted by CESTAT in the same case. Such discrimination between two similarly placed persons would not be possible.

¶15Accordingly, this Court is of the opinion that in order to ensure that there is compliance of Section 138(B) of the Act, though the same cannot be claimed as an unfettered right in all cases, in the facts of the present case, both Mr. Sushil Aggarwal and Mr. Aidasani are afforded an opportunity to cross examine Mr. Bhalla. The said cross examination shall be fixed on one particular date and the cross examination shall be concluded on the same date or one more date. No further adjournments or opportunities for cross examination shall be given. Upon the right to cross examination being afforded, the authority shall proceed to adjudicate the matter in accordance with law only qua these two Appellants.

¶16In respect of the other parties and issues involved, this Court has not made any observation qua the impugned order.

¶17The notice for cross examination shall be served upon the parties as also the ld. Counsels i.e., whose details are as under : Sushil Aggarwal Advocate: Pradeep Jain Email: jainglobus@gmail.com Mob. No.:9899152568 Sunil Aidasani Advocate: Mr. Akhil Krishan Maggu Email:Lexworks@gmail.com Mob. no.:8826872049

¶18The order-in-original qua the other noticees is also not being disturbed. In case the adjudicating authority again imposes a penalty on the Appellants, since this would be the second round, the pre-deposit condition shall stand waived.

¶19The appeals are disposed of in the above terms along with all pending applications. PRATHIBA M. SINGH JUDGE DHARMESH SHARMA JUDGE FEBRUARY 4, 2025/gs/ks

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 4th February, 2025. + CUSAA 35/2025 & CM APPL. 2882/2025 SUSHIL AGGARWAL …..Appellant Through: Mr. Pradeep Jain, Mr. Shubhankar Jha & Mr. Sambhav Jain, Advs. (M:9212023661) versus PRINCIPAL COMMISSIONER OF CUSTOMS …..Respondent Through: Ms. Anushree Narain, SSC AND + CUSAA 38/2025 & CM APPL. 3563/2025 PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT), NEW DELHI .....Appellant Through: Ms. Anushree Narain, SSC versus SUNIL AIDASANI @ VICKY .....Respondent Through: Mr. Akhil Krishan Maggu, Mr. Vikas Sareen, Ms. Maninder Kaur, Mr. Ayush Mittal, Ms. Oshin Maggu, Advs. CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE DHARMESH SHARMA Prathiba M. Singh, J. (Oral) 1. This hearing has been done through hybrid mode. Background 2. The present appeals are filed by the Appellants- Sushil Aggarwal and Principal Commissioner of Customs (Import) New Delhi challenging the impugned order dated 30th April, 2024 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter 'CESTAT'). The said order has also been challenged by the Appellant-Sushil Aggarwal in CUSAA 35/2025 as CESTAT dismissed its appeal vide Final Order No.55702-55704/2024 and upheld the penalties imposed on him under Sections 112 and 114 A of the Customs Act, 1962 (hereinafter 'the Act') as per the order in original dated 30th October, 2019. 3. The Principal Commissioner in CUSAA 38/2025 has filed an appeal against the order dated 30th April, 2024, as CESTAT allowed the appeal filed by the Respondent-Sunil Aidasani @ Vicky in the same final order by which the penalties imposed as per order in original dated 30th October, 2019 was set aside. The CESTAT also observed that a statement made by Mr. Bhalla under Section 108 of the Act will be relevant to prove the case as per Section 138B of the Act and thus the said person should be cross examined. Brief Facts 4. The entire investigation emanated from the order in original passed on 30th October, 2019 passed by the Principal Commissioner of Customs (Import) wherein an investigation had been commenced against five firms which were seen to be involved in declaration of goods and import of prohibited goods. The said five firms are: S. No. Name of the Company & Address IEC No. Director/Prop./Partner 1. M/s B.M. International F-9, Sagar Pur West, New Delhi 0514098171 (i) Inder Preet Singh Bhalla (ii) Manish Kumar 2. M/s Preet International F-9, Sagar Pur West, New Delhi 0512072744 (i) Inder Preet Singh Bhalla (ii) Manish Kumar 3. M/s Bhalla Enterprises Shop No. 8, DDA Market, Vikas Kinj, Vikas Puri, N. Delhi 0505065649 Inder Preet Singh Bhalla 4. M/s Manish & Bhalla International D2/2, D2 Block, Jeewan Park, Pankha Road, N. Delhi 0511076126 (i) Inder Preet Singh Bhalla (ii) Manish Kumar 5. M/s K. M. Enterprises F-9, Sagar Pur West, New Delhi 0513091882 Manish Kumar 5. A detailed investigation was conducted and various persons were found to be involved in the said imports running into 19 containers without any Bill of Entry, except for two containers. After analysing the role of various parties, the order in original imposed penalties against various persons including the firms. The said order reads as under: "A. In respect of M/s B.M. International, F-9, Sagar Pur West, New Delhi and its partners Shri Inderpreet Singh Bhalla and Shri Manish Kumar - i) I hereby reject the declared value of the goods imported by them in Container No. HDMU6797172 (BE No. 9628771 DATED 19.06.2015) under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and redetermine the same as Rs 2,77,86,730/-, as detailed in Annexure- 'A' to the SCN, in terms of Rule 5 and Rule 9 (as applicable) of the said Valuation Rules, 2007 read with Section 14 of the Customs Act, 1962. (ii) I determine the value of the goods imported by them in 2 (Two) Containers i.e. Container No. FCIU8930066 and Container No. PCIU8061867, as Rs 3,93,26,039/-, as detailed in Annexure- 'B' and C to the