2016 (4) TMI 64 - HC - Central Excise

Cross-examination of the witnesses mentioned in the show cause notice (SCN) - Held that - The Petitioner will submit a final reply to the SCN, on the basis of what has been made available to the Petitioner, within a period of four weeks from today and in any event not later than 14th March 2016. In the final reply, the Petitioner will indicate the names of the witnesses of the Department whom the Petitioner wishes to cross-examine. The adjudicating authority will examine and decide the aforementioned request of the Petitioner in terms of the Adjudication Manual of the Department and the law explained in Basudev Garg v. Commissioner of Customs ( 2013 (5) TMI 350 - DELHI HIGH COURT ) within two weeks of the receipt of such request. The adjudicating authority will fix a time bound schedule for the cross-examination such of those Department s witnesses in terms of the decision on the Petitioner s request in that behalf. It will be open to the Petitioner to raise a ground of challenge to denial of the cross-examination of any of the Department s witnesses at the stage of challenge, if any, to the adjudication order if the circumstances so warrant. The Petitioner will not seek any unnecessary adjournments and will participate in all the hearings before the adjudicating authority. The adjudicating authority will endeavour to conclude the adjudication proceedings and render a decision within a period of eight months after the commencement of hearing consequent upon the filing of the final reply by the Petitioner to the SCN.

Summary

Issues:
Request for cross-examination of witnesses in show cause notice.

Analysis:
The Petitioner challenged the order of the Commissioner of Central Excise (CCE) declining the request for cross-examination of witnesses mentioned in the show cause notice (SCN) issued on 4th April 2013. The Petitioner filed an interim reply on 29th August 2014, indicating the intention to file a final reply post cross-examination. However, the Court noted that the request for cross-examination was premature. The Court referred to the Adjudication Manual and previous decisions, emphasizing that the Petitioner cannot delay the final reply until after cross-examination. The Department argued that the request was premature and that the Petitioner cannot insist on cross-examination before filing the final reply. The Court stayed further adjudication and directed the Petitioner to submit a final reply within four weeks, specifying the Department witnesses for cross-examination.

The Court clarified that the law does not allow the Petitioner to postpone the final reply until after cross-examination of Department witnesses. Despite the interim order, no progress was made in the case. The Court issued directions for the Petitioner to submit a final reply within four weeks, naming the Department witnesses for cross-examination. The adjudicating authority was instructed to decide on the cross-examination request within two weeks of receipt, following the Adjudication Manual and legal precedents. The Petitioner was required to participate in hearings without seeking unnecessary adjournments. The adjudication proceedings were to be concluded within eight months after the final reply was filed.

The Court disposed of the writ petition with the specified terms. Additionally, the stay granted earlier was vacated, and the application was disposed of accordingly.