2019 (7) TMI 586 - HC - Customs

Principles of natural justice - the petitioner's request for cross-examination of the persons, on whose statements the Revenue relies upon is rejected - HELD THAT - In this case, the statements of persons relied upon by the Revenue are not being made available for cross-examination only on account of alleged delay in making application. We are unable to understand how an application seeking cross-examination of the persons being relied upon could be rejected on account of delay in making the application when the impugned order dated 11th September 2018 itself records that the documents relied upon in the Show Cause Notice were supplied/given to the petitioner on that day itself - Further, there is no time limit provided in the Act for completion of adjudication proceedings as its object is as to ensure that justice is done to the parties. We set aside that part of the order dated 11th September 2018, which rejects the request for cross-examination of the persons on whose statements the Revenue is relying upon and direct the Commissioner of Customs to permit the cross-examination of the three persons whose statements are being relied upon by the Revenue, i.e., Shri. Lalit Mange, Shri. Mohan Nakhua and Mr. Umesh Ghelani. Petition allowed.

Issues:
Challenge to communication/decision under Customs Act, 1962 regarding Show Cause Notice dated 27th April 2010.
Rejection of request for cross-examination of persons relied upon by Revenue.
Breach of principles of natural justice.
Exercise of extraordinary writ jurisdiction.
Availability of alternate remedy of filing an appeal.
Flaw in decision-making process.
Delay in making application for cross-examination.
Injustice caused by denial of cross-examination.
Setting aside part of the order and directing cross-examination.

Analysis:
The petition challenges a communication/decision dated 11th September 2018 by the Commissioner of Customs under the Customs Act, 1962, regarding a Show Cause Notice dated 27th April 2010. The impugned decision rejects the petitioner's request for cross-examination of persons relied upon by the Revenue, namely Sh. Lalit Mange, Sh. Mohan Nakhua, and Sh. Umesh J. Ghelani. The petitioner argues that this rejection violates principles of natural justice, citing relevant case law to support their claim (Andaman Timber Industries vs. Commissioner of C.Ex., Kolkata II & Kalpana Industries Ltd. vs. The Union of India).

The respondent, represented by Mr. Jetly, contends that the court should not exercise extraordinary writ jurisdiction as the petitioner has an alternative remedy of filing an appeal against the decision/order dated 11th September 2018. However, the court notes that in cases where there is a flaw in the decision-making process, particularly a breach of natural justice principles, the court may intervene through its writ jurisdiction rather than insisting on the statutory appeal route.

The court finds the denial of cross-examination based on alleged delay in the application perplexing, especially when the documents were provided to the petitioner on the same day. Highlighting the absence of a time limit for adjudication proceedings under the Act, the court emphasizes the importance of ensuring justice for all parties involved. Referring to previous judgments, the court asserts that denying cross-examination can render an order invalid.

Relegating the petitioner to the appellate process would not only lead to unjust orders but also delay justice. By denying the opportunity for cross-examination, the party's ability to establish innocence is compromised. Therefore, the court sets aside the part of the order rejecting the cross-examination request and directs the Commissioner of Customs to allow the cross-examination of the individuals in question: Shri. Lalit Mange, Shri. Mohan Nakhua, and Mr. Umesh Ghelani. Ultimately, the petition is allowed in favor of the petitioner in the specified terms.

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