2013 (11) TMI 1396 - AT - Customs

Jurisdiction of Adjudicating authority - Cross-examination of the First Secretary (Commerce) - Whether the adjudicating authority is competent to adjudicate the matter or not - order-in-original was passed in the first round of litigation on 17.5.2010 and the matter travelled up to Supreme Court and finally again the adjudicating authority had to take up adjudication. In the meanwhile the appellants were pursuing the matter under RTI Act to get the information relating to the issue from Singapore High Commission. The application to Singapore High Commission was made nearly two years after the adjudication order was passed i.e., 8.6.2012 which was rejected on 5.7.2012. Thereafter the appellate order under RTI Act was passed on 17.8.2012. However, when the adjudicating authority in the second round of litigation took up the matter, the fact that such applications were made and an appellate order had already been passed under RTI Act was not brought to the notice of the adjudicating authority at all, when the personal hearing took place - In fact nothing could have prevented or should have prevented the appellants from seeking the cross-examination of the First Secretary (Commerce) if they intended to do so in the first round of litigation itself, since appellants knew that there was a report and that had been mentioned in the show-cause notice also. Therefore, the submission that the First Secretary (Commerce) should be cross-examined before the adjudication process is completed cannot be accepted. Even though both sides have not produced any decisions, it is clear that there is no bar for adjudication of a matter by the adjudicating authority even if he had some role to play at the time of investigation or in the issue of show-cause notice. What is required to be seen is that there is no bias while passing the order - He had only responded to the query from India about the prices of betel nuts and had sent a report. Therefore, it cannot be said that he was part of the investigation. Therefore, this ground also we are unable to accept - Decided against assessee.

Summary

Issues:
1. Competency of the adjudicating authority to adjudicate the matter.
2. Request for cross-examination of the adjudicating authority.
3. Whether the person who sent the report can adjudicate the matter.
4. Consideration of RTI Act application in the adjudication process.

Analysis:

Competency of the Adjudicating Authority:
The Tribunal considered the issue of whether the adjudicating authority, who was previously involved in sending a report that formed the basis of the investigation, was competent to adjudicate the matter. The Tribunal noted that it is common for the same officer involved in investigations to adjudicate the matter, as long as there is no bias in the decision-making process. It was observed that the officer in question had only responded to a query about prices and sent a report, not actively participated in the investigation. Therefore, the Tribunal rejected the appeal challenging the adjudicating authority's refusal to recuse himself.

Request for Cross-Examination:
The appellants requested cross-examination of the adjudicating authority who had sent the report. The Tribunal found that this request was made after the adjudication order was passed and was not raised during the initial adjudication process. The Tribunal emphasized that the request for cross-examination should have been made earlier if the appellants intended to do so. Therefore, the request for cross-examination at this stage was rejected.

Adjudication Based on RTI Act Application:
The appellants had filed an application under the RTI Act to obtain information related to the issue from the Singapore High Commission. The Tribunal noted that the information sought through RTI was not available, and the appellate order under RTI Act was submitted after the adjudication order was passed. The Tribunal considered the timing of the RTI application and observed that the adjudicating authority was not aware of the RTI proceedings during the personal hearing. Despite this, the Tribunal left it to the judgment of the Commissioner to decide whether to adjudicate the matter or refer it to the Board for appointing another adjudicating authority, considering the issues involved and the RTI application's findings.

Conclusion:
The Tribunal rejected the stay applications and appeals, emphasizing the need for a fair adjudication process without bias. The decision highlighted the importance of timely actions and submissions during legal proceedings to ensure a transparent and effective process. The judgment underscored the significance of maintaining procedural integrity and adherence to legal principles in administrative and adjudicative actions.