2024 (5) TMI 335 - AT - Customs

Appealable order - Communication for fixing the next date - Seeking grant of permission to cross examination of the officers and witnesses to be reviewed - Whether the impugned communication addressed by the Superintendent (Adjn.) to the appellant would be considered as an order for filing of appeal before the Tribunal, in terms of section 129A - Without disposing the request application made by the appellant for cross examining the witnesses, whether the adjudicating authority can proceed to decide the SCN by granting the date of personal hearing to the appellant? - HELD THAT - Section 129A ibid provides various decisions and orders passed by different authorities for filing of appeal before the Tribunal. Clause (a) of sub-section (1) of section 129A ibid provides that a decision or order passed by the Commissioner of Customs may be appealed against before the Appellate Tribunal. In this case, the impugned communication dated 25-09-2023 has conveyed the date of personal hearing fixed before the adjudicating authority in respect of the SCN dated 20.10.2022 issued by him. The notice for personal hearing issued by the Superintendent is only a communication of the date fixed by the Commissioner of Customs and is not a decision of the Superintendent himself. Normally, it is for the Commissioner to fix or re-fix the dates of personal hearing. However, the grievance of the appellant is that no decision has been taken by the Commissioner on its request for cross examination. In our considered view, for this reason, this should be construed as an appealable order for filing of appeal before the Tribunal, in terms of the above statutory provisions. The views of the DRI on the cross examination neither give it an opportunity to appeal (because DRI is not the adjudicating authority) nor allow it for cross examination. Therefore, we conclude that the appellant has correctly filed the appeal before the Tribunal against the impugned communication dated 25.09.2023 addressed by the Superintendent (Adjn.). On perusal of the letter dated 12.09.2023 and the impugned communication dated 25.09.2023, we are of the view that the adjudicating authority was simply carried away by the views of the Deputy Director of DRI that the request for cross-examination of various persons should not be accepted and he simply got a copy of the DRI s letter sent to the noticee and has not taken a decision on the question of allowing cross-examination. It is incumbent upon the adjudicating authority to decide on the request independently and in a just and fair manner, and communicate it with reasons to the appellant and then he can fix the personal hearing. We are of the view that fixing the personal hearing in the matter without considering and deciding on the application for cross examination and instead sending a copy of the letter of DRI on the request is not correct. Thus, we find that the impugned communication dated 25.09.2023, fixing personal hearing without deciding on the request for cross examination and instead sending a letter from DRI on the question of cross-examination (although it does not explicitly say that DRI s views have been adopted by the Commissioner) deserves to be set aside and is accordingly, set aside. We cannot countenance any difficult in the Commissioner taking an independent view on this application and conveying it to the appellant before fixing the personal hearing. In the result, the appeal is allowed. The Commissioner may take a decision on the request for cross-examination independently and communicate it to the appellant and then proceed further. The miscellaneous application also stands disposed of accordingly.

Summary

Issues Involved:
The issues involved in this case are:
i) Whether the impugned communication addressed by the Superintendent (Adjn.) would be considered as an 'order' for filing of appeal before the Tribunal, in terms of section 129A of the Customs Act, 1962?
ii) Without disposing the request application made by the appellant for cross examining the witnesses, whether the adjudicating authority can proceed to decide the SCN by granting the date of personal hearing to the appellant?

Issue (i) - Impugned Communication as an 'Order':
The Appellate Tribunal considered whether the impugned communication dated 25.09.2023, conveying the date of personal hearing fixed before the adjudicating authority, should be deemed as an 'order' for filing an appeal before the Tribunal u/s 129A of the Customs Act, 1962. The Tribunal referenced a similar case where it was held that a communication denying cross-examination can be considered a significant decision for appeal purposes. In this case, the Commissioner neither accepted nor denied the request for cross-examination, merely forwarding the views of DRI. The Tribunal concluded that the appellant correctly filed the appeal against the impugned communication.

Issue (ii) - Cross-Examination Request and Personal Hearing:
The Tribunal examined whether the adjudicating authority can fix a personal hearing without deciding on the appellant's request for cross-examination. It was noted that the adjudicating authority did not independently decide on the request but merely forwarded DRI's views. The Tribunal emphasized the importance of the adjudicating authority making an independent decision on cross-examination before proceeding with the personal hearing. Citing a Supreme Court case, the Tribunal emphasized the necessity of allowing cross-examination for a fair adjudication process.

In conclusion, the Tribunal allowed the appeal, setting aside the impugned communication and directing the Commissioner to independently decide on the request for cross-examination and communicate it to the appellant before proceeding further.