2009 (12) TMI 260 - HC - Central Excise

Natural justice- a team of Central Excise Officers from Central Excise Commissionerate, Ghaziabad visited the factory premises of the petitioner and conducted the checking of the factory situate at Gautam Budh Nagar. In the search operation raw material and goods were found in short. Thereafter a show cause notice was issued and proceeding in consequence of the search operation is going on. The petitioner raised a grievance that the department should produce the witnesses who were responsible for making the weighment, as according to the goods were not weighted properly. Held that- we do not find that it is a fit case to interfere at this stage of the proceeding. If the department fails to produce material witnesses, an adverse inference as permissible under law would be drawn against it. It is the choice of the department to produce or not to produce the material witnesses. If the parties are not interested to produce a witness, the Court cannot compel it to produce. Law will take its own course. In view of above, we are not inclined to interfere at this stage of the proceedings and the writ petition is disposed of accordingly.

Summary

Issues involved:
Cross-examination of witnesses in a customs case regarding weighment process during a search operation.

Detailed Analysis:

1. Cross-examination of Witnesses:
The petitioner sought a writ of mandamus directing the Commissioner of Customs and Central Excise to allow cross-examination of witnesses, including Excise Officers present during a search operation on 6th March, 2006, where discrepancies in weighment were alleged. The petitioner contended that the witnesses responsible for the weighment process should be produced for cross-examination to ensure fairness and natural justice.

2. Previous Writ Petition:
A previous writ petition filed by the petitioner had been disposed of, with the court observing the importance of allowing the petitioner to cross-examine witnesses involved in the weighment process. Subsequently, the petitioner filed applications for cross-examination, which were disposed of through impugned orders dated 30-10-2009 and 17-11-2009, leading to the filing of the present writ petition.

3. Legal Arguments:
The Senior Counsel for the petitioner cited the decision in Arya Abhushan Bhandar v. Union of India, emphasizing the right to cross-examine witnesses involved in the weighment process as a fundamental aspect of natural justice. The petitioner sought direction for the production of witnesses present during the search operation for cross-examination.

4. Court's Decision:
After hearing the arguments, the court declined to interfere at that stage of the proceedings. The court highlighted that if the department failed to produce material witnesses, adverse inferences could be drawn against it, as per legal provisions. The court emphasized that it was within the department's discretion to decide whether to produce witnesses or not, and the judiciary could not compel the production of witnesses. Consequently, the writ petition was disposed of, maintaining that the law would follow its course.

In conclusion, the judgment focused on the principles of natural justice regarding the cross-examination of witnesses in a customs case, highlighting the importance of fairness and legal procedures while emphasizing the discretionary power of the department in producing witnesses.