2013 (3) TMI 89 - HC - Central Excise

Clandestine removal of cigarettes without payment of the central excise duty - assessee argued that a direction ought to be issued by this Court to the Commissioner of Central Excise (ADJN), New Delhi to permit the petitioner to cross-examine the remaining witnesses available before acting under section 9D - Held that - No intervention in the exercise of this Court s power under Article 226 of the Constitution of India is warranted for the present, thus without recording any observation on the rival orientations on merits, it appropriate to dispose of this petition by requiring the Commissioner of Central Excise (ADJN), New Delhi to consider and decide on the petitioner s request dated 4.1.2013 caliming right of cross-examination of the witnesses before furthering the proceedings based on the show cause notice involved and acting under Section 9D of the Act as proposed. Direction to the petitioner to be present through its authorized representative before the Commissioner of Central Excise (ADJN), New Delhi on 22.2.2013, who, after affording an opportunity of hearing to the parties, would record his decision on the issue.

Summary

Issues:
- Right of cross-examination of witnesses based on show cause notice alleging clandestine removal of cigarettes without payment of central excise duty.

Analysis:

The petitioner approached the High Court aggrieved by the orders passed by the Commissioner of Central Excise, which were perceived to extinguish its right of cross-examination of witnesses crucial to the show cause notice alleging clandestine removal of cigarettes without payment of central excise duty. The petitioner had previously approached the Court due to non-furnishing of relevant documents by the respondents, hindering its ability to rebut the allegations effectively. The petitioner had cross-examined 7 out of 68 witnesses whose statements were recorded by the Revenue to support the allegations. However, due to the lapse of time, many witnesses were unavailable, either deceased, infirm, or abroad. The petitioner sought to cross-examine the remaining witnesses to counter the accusations effectively.

The petitioner argued that it should be permitted to cross-examine the remaining witnesses before any action under Section 9D of the Central Excise Act is taken. The Revenue contended that the challenge was premature as no decision had been made rejecting the petitioner's reply dated 4.1.2013. The Court, after hearing both parties, decided that intervention under Article 226 of the Constitution was not warranted at that stage. The Court directed the Commissioner of Central Excise to consider and decide on the petitioner's request before proceeding with the show cause notice and action under Section 9D of the Act.

The Court instructed the petitioner to be present through its authorized representative before the Commissioner of Central Excise on a specified date for a decision on the issue. It was clarified that the Court had not made any observations on the merits of the case, leaving it to the Commissioner to arrive at an independent finding in accordance with the law. The Court emphasized that the decision was not to influence the Commissioner's independent judgment. The petition was disposed of with no costs involved.