2016 (5) TMI 1040 - HC - Customs

Seeking cross-examination of two persons whose statements were relied upon while issuing the SCN - Cross-examination denied by the order that there is no such direction in the above referred order of Hon ble High Court of Delhi and also the same was also never sought by you at the time of adjudication proceedings held earlier in the said matter. - Held that - the reason given is plainly untenable apart from the fact that the AC who passed the above order is not the AA himself. It is pointed out by the Respondents that the order passed by the AC was approved by the Commissioner and, therefore, it could not be said that it was without jurisdiction. The Court is unable to accept the above submission. Once the adjudicating proceedings are conducted by the Commissioner, it is he alone who was to pass orders in relation to any aspect of the adjudication and that cannot be delegated to any subordinate authority. Therefore, the Court finds no justification for denying the request for cross-examination of the two persons whose statements have been relied upon by the Customs Department. The impugned order is quashed with a direction to AA to permit the Petitioner to cross-examine the two persons within a time schedule to be fixed by the AA. - Petition disposed of

Summary

Issues: Challenge to order rejecting cross-examination request, Jurisdiction of Adjudicating Authority

Challenge to order rejecting cross-examination request:
The writ petition challenges an order rejecting the petitioner's request for cross-examination of witnesses whose statements were relied upon in a show cause notice issued by the Customs Department. The High Court had previously set aside a similar order in a different case and directed the Adjudicating Authority to provide copies of relied-upon documents, receive a reply to the show cause notice, conduct a personal hearing, and pass an order within a specified timeframe. However, the Assistant Commissioner of Customs rejected the cross-examination request citing lack of direction from the High Court order and absence of such request during earlier adjudication proceedings.

Jurisdiction of Adjudicating Authority:
The Adjudicating Authority in this case is the Commissioner of Customs, ICD Tughlakabad, as per a previous order by the Central Board of Excise and Customs. Despite this, the impugned order rejecting the cross-examination request was passed by the Assistant Commissioner. The High Court found the reason given for rejecting the request untenable, emphasizing that the Commissioner alone should handle aspects of adjudication and not delegate them to subordinate authorities. The Court noted that there was no justification for denying the cross-examination request of the witnesses relied upon by the Customs Department.

In conclusion, the High Court quashed the order rejecting the cross-examination request and directed the Adjudicating Authority to permit the petitioner to cross-examine the witnesses within a specified timeframe. The Court extended the time limit for completion of adjudication proceedings by eight weeks after the conclusion of cross-examination. The writ petition and application were disposed of accordingly.