2018 (6) TMI 975 - HC - Customs

Principles of Natural Justice - the right of cross-examination was denied unlawfully to the petitioners - Held that - The reason for non-appearance at the appointed time cited is the engagement of the learned Advocate before the High Court. The adjudicating authority ought to have dealt with such a request made on behalf of the petitioners contained in the writing dated October 23, 2017. The impugned order is silent on such aspect. It is not a case where the petitioner is avoiding the proceedings - The petitioners will forfeit the right to cross-examination of the witnesses, in the event of their failure to commence the cross examination at the appointed date and time - petition disposed off.

Summary

Issues: Challenge to order of Commissioner of Customs (Port) on grounds of breach of natural justice - Denial of right of cross-examination - Validity of impugned order

The High Court of Calcutta considered a writ petition challenging the order dated November 16, 2017 passed by the Commissioner of Customs (Port). The petitioners contended that the impugned order was tainted by a breach of natural justice as they were unlawfully denied the right of cross-examination. The petitioners had initially been denied this right on August 25, 2017, leading them to approach the writ court. Subsequently, the court allowed the right of cross-examination, setting October 23, 2017 as the date for the same. However, the petitioners' advocate could not attend on the specified date and requested an adjournment, which was not considered by the authorities before passing the impugned order.

The advocate for the department highlighted that personal hearings were scheduled for August 25, 2017 and October 23, 2017, as indicated in paragraphs 22.9 and 22.11 of the impugned order. The court observed that although the authorities intended to provide a personal hearing to the petitioners during the adjudication proceedings, the right of cross-examination was initially denied on August 25, 2017. Following the writ court's intervention, the date for cross-examination was fixed for October 23, 2017. However, the petitioners' advocate could not attend on that date due to prior commitments, as explained in a letter to the Commissioner of Customs (Port) dated October 23, 2017. The failure to address the request for an extension of time to cross-examine in the impugned order was noted by the court, emphasizing the need for procedural fairness.

In light of the circumstances, the High Court set aside the impugned order, granting the petitioners a reasonable opportunity to cross-examine the witnesses. It was clarified that no further adjournments would be allowed, and failure to commence cross-examination at the specified date and time would result in forfeiture of this right. The court emphasized the importance of ensuring a fair hearing and proper consideration of requests for adjournments, particularly in cases where genuine reasons for non-appearance are presented. Ultimately, the writ petition was disposed of without any costs imposed on either party.