2013 (12) TMI 1404 - HC - Customs

Cross examination of noticee - Held that - It is for the Commissioner of Customs (Import) to decide whether to grant cross examination of the persons asked for by the petitioner depending upon the facts and evidence arising for consideration in the case - if an order adverse to the petitioner is passed in the adjudication proceedings, it will be open to the petitioner to raise all available contentions including the fact that the petitioner had made the aforesaid applications dated 21 May 2013 and 26 September 2013 for cross examination, in case the applications are not granted.

Summary

Issues:
1. Petition seeking directions for cross-examination of co-noticee.
2. Pending adjudication proceedings before the Commissioner of Customs.
3. Request for cross-examination of Managing Director.
4. Contention raised by the petitioner for cross-examination.
5. Disposition of the petition with observations.

Issue 1: Petition seeking directions for cross-examination of co-noticee

The petitioner filed a petition under Article 226 of the Constitution of India, requesting directions to the Commissioner of Customs (Import) to decide on the petitioner's applications dated 21 May 2013 and 26 September 2013 for allowing cross-examination of co-noticee Mr. Kiyoshi Tatsui Oike or the new Managing Director of Yakulf Danone India Private Limited (referred to as "YDI").

Issue 2: Pending adjudication proceedings before the Commissioner of Customs

The Additional Director General of Revenue Intelligence issued a show cause notice under the Customs Act, 1962, with the petitioner being Company Secretary of YDI and noticee No.3. The proceedings are pending before the Commissioner of Customs (Import) Mumbai, with the petitioner seeking cross-examination of Mr. Oike, the former Managing Director of YDI.

Issue 3: Request for cross-examination of Managing Director

The petitioner applied for cross-examination of Mr. Oike, stating the need to confront the present Managing Director of YDI with certain emails on record. The petitioner reiterated the request in a subsequent application dated 26 September 2013, either to cross-examine Mr. Oike or the current Managing Director.

Issue 4: Contention raised by the petitioner for cross-examination

The petitioner's counsel raised various contentions in support of the applications for cross-examination. However, the High Court declined to entertain the petition, emphasizing that the decision to allow cross-examination rests with the Commissioner of Customs (Import) based on the facts and evidence in the case.

Issue 5: Disposition of the petition with observations

The High Court disposed of the petition, noting that if an adverse order is passed in the adjudication proceedings, the petitioner can raise all available contentions, including the fact that applications for cross-examination were made. The Court highlighted that the Commissioner of Customs has the authority to decide on granting cross-examination based on the case's merits.

In conclusion, the High Court's judgment emphasized the Commissioner of Customs' discretion in allowing cross-examination and highlighted that the petitioner can raise contentions if adverse orders are passed. The Court refrained from interfering in the pending proceedings, leaving the decision on cross-examination to the adjudicating authority.