2018 (9) TMI 1980 - HC - Customs

Principles of natural justice - request for cross-examination of witnesses denied - denial on the ground that respondent on cross-examination of witnesses present during the course of investigation is not warranted - HELD THAT - The decision in the case of M/S MULCHAND M. ZAVERI 1 VERSUS UNION OF INDIA 1 2016 (4) TMI 1074 - GUJARAT HIGH COURT , COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD - II VERSUS GUJARAT CYPROMET LTD. 2013 (7) TMI 245 - GUJARAT HIGH COURT clearly upheld right of the affected party to cross-examine witnesses irrespective of the fact that he had an opportunity or an access to the material on record. Thus, if there are any witnesses of whose statement the competent authority relies on or propose to rely, such witnesses would be permitted to be cross-examined. Petition allowed.

Summary

Issues:
Challenging denial of cross-examination of witnesses by Commissioner, Central Excise GST and Central Excise, Gandhinagar.

Analysis:
The petitioners filed writ petitions under Article 226 challenging the denial of their request for cross-examination of witnesses by the Commissioner. The rejection was based on the premise that cross-examination was not warranted as the partner of the petitioner firm had already examined the evidence gathered during the investigation. The petitioners argued that they should be allowed to cross-examine witnesses, citing a previous order by a Division Bench of the Court in a similar context.

The Division Bench referred to various legal precedents, including Mulchand M. Zaveri v. Union of India, Commissioner of Central Excise, Ahmedabad vs. Gujarat Cypromet Ltd., Commissioner of Central Excise & Customs vs. Chandan Tubes & Metals Pvt. Ltd., Manek Chemicals Pvt. Ltd vs. Union of India, and Andaman Timber Industries vs. Commissioner of Central Excise, Kolkata. These decisions upheld the right of the affected party to cross-examine witnesses, regardless of their access to the evidence on record. The respondent's counsel did not dispute this legal proposition but argued for a peculiar treatment of the case.

Given the agreement of both parties on the legal position regarding cross-examination, the Court allowed the petitions. The impugned orders denying cross-examination were quashed and set aside. The Court clarified that the adjudicating authority must provide witnesses for cross-examination if their statements are relied upon in the show cause notice. Any witnesses whose statements are relied upon or proposed to be relied upon must be made available for cross-examination. The Court granted this relief and allowed the petitions with the stated directions.