2010 (11) TMI 109 - HC - Central Excise

Question of law - Assessee entitled to cross examine the witnesses whose statements were recorded, relied upon and referred to in the show cause notice -the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon to issue the show cause notice, are liable to be examined at that stage- . The exercise of cross-examination commences only after the proceedings for adjudication have commenced. - the order insofar as the cross-examination is concerned, is liable to be set aside. A C.D. containing documents relied upon by the Department be sufficient or is it mandatory that hard copies be given and/or the copies printed by respondent at the cost of the appellants - The assessee is entitled to the reasonable cost incurred for getting the copies of the documents - the documents have been made available in the form of a C.D., one can read the same - there are any documents, which are not clear, then in that event, if the respondent applies for those documents, then the Department shall, within 15 days of the receipt of the letter in respect of those copies, make them available to the respondent herein at the Department s cost - The appeal is disposed of

Summary

Issues Involved:
1. Entitlement of an assessee to cross-examine witnesses before filing a reply to the show cause notice.
2. Sufficiency of providing a CD containing documents versus providing hard copies of the documents.

Issue-wise Detailed Analysis:

1. Entitlement to Cross-Examine Witnesses Before Filing a Reply to the Show Cause Notice:
The primary issue raised was whether an assessee is entitled to cross-examine witnesses whose statements are recorded, relied upon, and referred to in the show cause notice before filing a reply. The court analyzed several precedents, including *International Electron Devices Ltd. v. Union of India* and *Prestige Paints v. Commissioner of Customs and Central Excise, Kanpur*, which dealt with the right to cross-examine witnesses during adjudication proceedings. The court emphasized that cross-examination is a right during adjudication to test the veracity of statements and ensure evidence is reliable. However, the court clarified that at the stage of a show cause notice, which is based on prima facie material, there is no adjudication, and thus no right to cross-examine witnesses exists. The court concluded that the principles of natural justice do not require witnesses to be made available for cross-examination before the adjudication proceedings commence.

2. Sufficiency of Providing a CD Containing Documents Versus Providing Hard Copies:
The second issue concerned whether providing a CD containing documents relied upon by the Department suffices or if hard copies must be provided. The court referred to the Adjudication Manual and the Supreme Court's judgment in *Sanghi Textile Processors (P) Ltd. v. Collector of Central Excise*, which mandated that copies of documents must be provided without charging the party. The court noted that the respondent had received a CD containing the documents but argued that some documents were illegible. The court held that providing a CD amounts to sufficient compliance, although not strict compliance. If any documents are unclear, the Department must provide hard copies of those specific documents within 15 days upon request, at the Department's cost.

Conclusion:
The court set aside the impugned order concerning the right to cross-examine witnesses before filing a reply to the show cause notice, affirming that such a right arises only during adjudication proceedings. Regarding the provision of documents, the court ruled that a CD suffices, but hard copies must be provided for any unclear documents upon request. The appeal was disposed of accordingly.