2017 (2) TMI 1202 - HC - Central Excise

Alternative remedy of appeal - the order in original is vitiated due to procedural irregularities - Held that - Existence of a statutory alternative remedy is not an absolute bar to the maintainability of a writ petition. Institute of Chartered Accountants of India recognizes that where the order in original is vitiated due to procedural irregularities, then a writ petition is maintainable as an appeal may not be a remedy. The impugned order stands vitiated due to such procedural irregularity - petition allowed - decided in favor of petitioner.

Summary

Issues:
Challenge to order of Commissioner of Central Excise based on procedural irregularities and denial of right to cross-examine witness.

Analysis:
The petitioner challenged an order passed by the Commissioner of Central Excise, alleging procedural illegality and misconduct of proceedings. The petitioner contended that the right to cross-examine the witness was denied, despite a request being made. The petitioner argued that the existence of a statutory appeal does not preclude filing a writ petition in cases of procedural irregularities, citing relevant case laws. The Revenue, however, accused the petitioner of delaying proceedings. The court considered both sides' arguments and examined the available materials.

The court acknowledged that the presence of a statutory alternative remedy does not always bar the maintainability of a writ petition, especially when the original order is tainted by procedural irregularities. The court emphasized the importance of the right to cross-examine a witness, particularly when their evidence is crucial to the case. In this instance, the petitioner's request for cross-examination was unjustly denied based on questionable grounds related to the witness's statements.

Highlighting the adversarial nature of legal proceedings, the court reiterated that denying a party the right to cross-examine a witness is unacceptable. Citing a previous case, the court emphasized that orders lacking provisions for cross-examination have been set aside. Consequently, the court set aside the impugned order and directed a fresh hearing with proper opportunity for the petitioner to present their case.

In light of allegations of delay by the petitioner, the court directed the adjudicating authority not to grant any adjournments without valid reasons. The writ petition was disposed of without costs, and the parties were instructed to obtain certified copies of the order promptly if needed for further action.