2020 (11) TMI 512 - AT - Service Tax

Principles of Natural Justice - the request of the appellant for granting of cross-examination of the witnesses has been denied - HELD THAT - There is no dispute that the witnesses of which cross-examination has been sought for by the appellant have given their statements during investigation and such statements were relied upon in the Show cause notice. Some of the statements given by the third parties. The appellant for making their effective defence wish to cross-examine the witnesses. The appellant should be given all the opportunity for making their defence including the cross- examination. Denial of cross- examination will amount to unfair justice in the case and also violation of principles of natural justice. When the noticee seeks for cross examination of witnesses, in the interest of justice and as mandated in section 9D of Central Excise Act, 1944, the Adjudicating Authority is under legal obligation to grant cross-examination of witnesses to the noticee. Therefore, the appellant s prayer for seeking cross- examination of witness is just and proper and the same is allowed. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Denial of cross-examination of witnesses in a Show Cause notice proceeding.

Analysis:
The appeal was against the denial of the appellant's request for cross-examination of witnesses in a Show Cause notice proceeding. The appellant argued that the statements of various persons, including third parties, were relied upon without documentary evidence, and the denial of cross-examination was unjust. The Adjudicating Authority, on the other hand, contended that the statements were not retracted, hence cross-examination was unnecessary. The tribunal noted the importance of cross-examination for an effective defense and found denial of it would be unfair and against principles of natural justice.

The tribunal considered previous judgments cited by both sides and emphasized the appellant's right to cross-examine witnesses for a fair defense. The tribunal disagreed with the Adjudicating Authority's reasoning for denial based on the likelihood of delay in proceedings. It highlighted that evidence can only be admitted after cross-examination under relevant provisions of the Customs Act, emphasizing the importance of cross-examination in the principles of natural justice. The tribunal concluded that the appellant should be allowed to cross-examine witnesses except for the SIO, as the SIO was part of the investigation and the Show Cause notice relied on various statements, letters, and opinions.

The tribunal held that the Adjudicating Authority is legally obligated to grant cross-examination of witnesses when requested by the noticee, as mandated by the Central Excise Act. Therefore, the appellant's request for cross-examination was deemed just and proper. Consequently, the impugned order denying cross-examination was set aside, and the appeal was allowed in favor of the appellant.

In conclusion, the tribunal's judgment emphasized the importance of cross-examination in ensuring a fair defense, upheld the appellant's right to cross-examine witnesses, and set aside the order denying cross-examination. The decision was based on principles of natural justice and legal obligations under the Central Excise Act, highlighting the significance of allowing cross-examination in such proceedings.