2024 (11) TMI 1354 - AT - Customs

Rejection of cross-examination of six DRI officers and one co-noticee by the competent authority - HELD THAT - Main objective of cross-examination is to challenge the accuracy credibility and reliability of the testimony provided by any witness in a proceedings before the Original Authority. Cross-examination of a witness can be requested when his statement is used against the appellant in adjudication proceedings which is not the situation in this case. This is a case where cross examination is sought mainly of DRI officials who have recorded statements of individuals. The officers have no personal interest in the matter. It is not the case of the appellant that any statement relied upon by the revenue in the SCN has been made / taken from the said officers / persons and hence an opportunity of cross-examining the maker of the statement should be given. The reason given for the request to cross examine the said officials is to ascertain facts relating to the alleged absconding of the said Sheikh and Jamal and as they have doubts regarding the efficacy and integrity of the investigation conducted. It is also not shown that the said persons are the officers investigating the where abouts of the said Shri Sheikh and Jamal or have merely recorded the statements of the individuals. In any case the officers are not a material witness in the lis. Further the appellant cannot direct the manner in which the investigation should be conducted by an investigative agency as it would tantamount to interference with the functioning of the agency. Any facts noticed regarding the efficacy and integrity of the investigation conducted can be brought out in their reply to the SCN so as to seek a favorable order. Section 24 of the said Act which deals with matter relating to criminal proceedings and has more stringent safeguards makes it clear that mere retraction of a statement is of no avail unless the conditions stated therein are demonstrated otherwise the confession does not loose its evidentiary value. Hence the decision of the Ld. Adjudicating Authority cannot be faulted for not permitting the cross examination of the impugned persons when no statement has been recorded from the officers incriminating the appellant and the appellant had himself made a confessional statement that is valid evidence. It cannot be held that the decision was unreasonably or capriciously or vague etc. In fact admission is the best piece of substantive evidence that can be relied upon. See United India Insurance Co. Ltd. and Anr. Vs Samir Chandra Chaudhary 2005 (7) TMI 701 - SUPREME COURT . Though not conclusive it is decisive of the matter unless shown to be obtained by inducement threat or promise or is proved erroneous. Section 122A of the Customs Act which deals with Adjudication Procedure does not mention that an opportunity of cross-examination should be given let alone that a reply to the Show-Cause Notice should be given after cross-examination if any. The permission for cross-examination has evolved as a part of the principles of natural justice. But it is not a straight jacket formula and grant of cross examination is dependent on the discretion of the Adjudicating Authority to be exercised in a judicious way. The appellant is free to make his written submissions to the SCN both prior and post the cross-examination or further during the personal hearing. So the lack of an opportunity of cross examination should not incapacitate the appellant from submitting his reply to the issues raised in the notice. When the impugned decision denying cross-examination was taken by the officer acting within the scope of his powers. It has been taken judiciously and can t be said to be arbitrary vague or fanciful. It cannot hence be substituted just because the appellant feels that another view may be possible.

Summary

Issues Involved:

1. Whether the appellant has the right to cross-examine the DRI officers and a co-noticee.
2. Applicability of the principles of natural justice and the Indian Evidence Act in adjudication proceedings under the Customs Act.
3. The discretionary power of the adjudicating authority in permitting cross-examination.
4. The distinction between adjudication proceedings and criminal prosecution.

Issue-wise Detailed Analysis:

1. Right to Cross-Examine DRI Officers and Co-noticee:

The appellant sought to cross-examine six DRI officers and a co-noticee, arguing that it was essential to address the alleged absconding of key individuals involved in the case. The appellant emphasized the importance of cross-examination as a fundamental right under the principles of natural justice, citing various judgments that support this right in legal proceedings. However, the adjudicating authority denied this request, stating that the statements of these officers were not relied upon in the investigation, and thus cross-examination was not necessary. The adjudicating authority referred to precedents where cross-examination was not deemed a mandatory requirement, especially when sufficient corroborative evidence existed.

2. Applicability of Principles of Natural Justice and Indian Evidence Act:

The appellant argued that the principles of natural justice and provisions of the Indian Evidence Act should apply to the adjudication proceedings, granting them the right to cross-examine witnesses. The appellant cited several judgments to support the claim that cross-examination is integral to ensuring a fair trial. However, the adjudicating authority and the revenue countered that strict rules of evidence do not apply to adjudication proceedings, which are distinct from criminal trials. The adjudicating authority maintained that the Customs Act is a complete code, and the procedures outlined within it should govern the proceedings.

3. Discretionary Power of Adjudicating Authority:

The adjudicating authority exercised its discretion in denying the request for cross-examination, arguing that such discretion must be exercised within the statutory framework and should not be interfered with unless it is shown to be unreasonable or arbitrary. The authority emphasized that cross-examination is not an absolute right and should be permitted only when necessary to ensure justice. The decision was based on the assessment that the officers in question were not material witnesses and that the appellant's confessional statement, albeit retracted, was voluntary and binding.

4. Distinction Between Adjudication Proceedings and Criminal Prosecution:

The judgment highlighted the distinction between adjudication proceedings under the Customs Act and criminal prosecution. It was noted that adjudication proceedings are civil in nature and do not carry the same procedural requirements as criminal trials. The Supreme Court has previously held that adjudication and criminal prosecution are independent, and findings in one do not bind the other. The judgment reiterated that the Customs Act provides its own procedural framework, and importing criminal procedural requirements into it is not permissible.

Conclusion:

The appeal was rejected, with the adjudicating authority's decision upheld. The authority's discretion in denying cross-examination was found to be exercised judiciously and within the legal framework. The appellant's arguments regarding the application of natural justice and the Indian Evidence Act were not sufficient to override the statutory provisions of the Customs Act. The judgment reinforced the principle that adjudication proceedings are distinct from criminal prosecutions and should be governed by the specific procedures outlined in the Customs Act.