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2018 (12) TMI 509 - AT - CustomsPrinciples of natural justice - cross examination of the chemical examiner as well as chartered engineer not granted - violation of Section 138 (b) of the Customs Act 1962 - Held that - Considering the fact that the provisions of Section 138 (b) of the Customs Act 1962 are pari materia to the provisions of Section 9D of the Central Excise Act 1944 - in the case of Alliance Alloys Pvt Ltd vs. CCE Delhi 2016 (7) TMI 153 - CESTAT CHANDIGARH this Tribunal has examined the issue whether in terms of Section 9D of the Central Excise Act 1944 the adjudicating authority is required to first examine the witness in chief for cross examination or not and the matter was remanded for re-examination of the case as adjudicating authority has not given an opportunity of cross examination of witness. The adjudicating authority has not followed the procedure laid down under Section 138 (b) of the Customs Ac 1962 - matter remanded back to the adjudicating authority to re-adjudicate the matter in terms of the observatiaons of this Tribunal in the case of Alliance Alloys Pvt. Ltd. - appeal allowed by way of remand.
Issues Involved:
1. Denial of cross-examination of the chemical examiner and chartered engineer. 2. Adherence to the procedure laid down under Section 138(b) of the Customs Act, 1962 and Section 9D of the Central Excise Act, 1944. 3. Relevancy and admissibility of statements made during the course of inquiry or investigation. Detailed Analysis: Denial of Cross-Examination: The appellant challenged the impugned orders on the grounds that their request for cross-examination of the chemical examiner and the chartered engineer was denied. This denial was argued to be a violation of the principles of justice. The appellant emphasized that cross-examination is a fundamental right to ensure a fair trial and due process. Adherence to Section 138(b) and Section 9D: The Tribunal considered the provisions of Section 138(b) of the Customs Act, 1962 as pari materia to Section 9D of the Central Excise Act, 1944. It referenced the case of Alliance Alloys Pvt Ltd vs. CCE, Delhi, where it was established that the adjudicating authority must first examine the witness in chief before allowing cross-examination. This procedure is crucial for ensuring that the statements made during the investigation are admissible and relevant. Relevancy and Admissibility of Statements: The Tribunal cited multiple precedents, including the case of Kuber Tobacco India Ltd., to emphasize that statements made during the course of an inquiry are only relevant under specific circumstances outlined in Section 9D(1). These circumstances include the death of the person, inability to find the person, incapacity of the person to give evidence, or if the person is kept out of the way by the adverse party. If these conditions are not met, the statements cannot be used as evidence without further corroboration. The Tribunal also referenced the judgment of the Hon’ble Delhi High Court in the case of J.K. Cigarettes, which clarified that the absence of the specified circumstances in Section 9D(1) renders the statements inadmissible for proving the truth of the facts contained therein. The adjudicating authority must follow a two-step process: first, examine the person who made the statement as a witness, and second, form an opinion on the admissibility of the statement in the interest of justice. Conclusion: The Tribunal found that the adjudicating authority failed to follow the procedure laid down under Section 138(b) of the Customs Act, 1962. Consequently, the impugned orders were set aside, and the matter was remanded back to the adjudicating authority for re-adjudication in accordance with the observations made in the case of Alliance Alloys Pvt. Ltd. The appeals were disposed of by way of remand, with the operative part of the order pronounced in the court.
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