2013 (11) TMI 535 - HC - Central Excise

Right to cross examine - Whether the petitioners are entitled to cross-examine of the witnesses or not Held that - Even if the petitioners had never submitted any explanation to the show cause notices, the conduct of an enquiry becomes necessary and the cross-examination of the officers, who are authors of the statements, crystalizes into a right for the petitioners - cross examination allowed. Retraction from an early statement would normally occur only during the course of the enquiry - In the course of the enquiry, witnesses have not been examined so far - The purpose of cross-examination is only to disprove the statements given by the witnesses - If the witnesses had already retracted from their original statements, the petitioners would have been well advised not to ask for cross-examination at all - only those persons whose statements or whose documents or whose reports are relied upon will be made available for cross-examination Decided in favour of Petitioner.

Summary

Issues:
Challenge to orders rejecting cross-examination request in Central Excise Act enquiry.

Analysis:
The petitioners challenged orders rejecting their cross-examination request in an enquiry under Section 11A of the Central Excise Act, 1944. The respondents relied on reports of the Energy Auditor and statements of officers and witnesses in the show cause notices' annexure. The petitioners in one writ petition requested cross-examination, while others did not. The enquiry officer rejected the cross-examination request independently, leading to the petitioners approaching the Court.

The Court emphasized the fundamental principle of natural justice that when reports or statements are relied upon in an enquiry, the authors and persons should be available for cross-examination. The respondents raised objections to the cross-examination request, including delay in submitting explanations and lack of reasons provided by the petitioners. However, the Court held that the delay in submitting explanations does not justify denying the right to cross-examination, which is essential in an enquiry.

The Court rejected the respondents' objections that petitioners did not state reasons for cross-examination and that witnesses had not retracted their statements. It clarified that no specific reasons are required for cross-examination, as it is a fundamental right in an enquiry. The purpose of cross-examination is to challenge witness statements, regardless of retractions. The Court also addressed objections raised by the respondents regarding the lack of explicit cross-examination requests in some writ petitions, emphasizing that the right to cross-examination cannot be denied without a formal request.

Furthermore, the Court highlighted that only persons whose statements or reports are relied upon should be made available for cross-examination. The Court directed the enquiry officer to provide clear communication to the petitioners regarding the hearing details, including the list of statements and documents to be relied upon. The Court stressed the importance of not seeking unnecessary postponements once witnesses are made available for cross-examination. Ultimately, the Court disposed of the writ petitions with directions to ensure proper cross-examination procedures are followed, emphasizing fairness and adherence to natural justice principles in the enquiry process.