2016 (4) TMI 887 - HC - Central Excise

Seeking direction to cross-examine the Chemical examiner - Violation of principles of natural justice - Held that - as per submission of respondent that Chemical Examiner s report can be eschewed or ignored by the appellate authority, while deciding the appeal, to be filed by the petitioner, I am of the view that the petitioner is at liberty to file an appeal against the impugned order and also direct the appellate authority to decide the appeal, on merits and in accordance with law, without relying upon the Chemical Examiner s report. - Petition disposed of

Summary

Issues:
1. Opportunity to cross-examine the Chemical Examiner.
2. Denial of natural justice.
3. Validity of the impugned order without relying on the Chemical Examiner's report.
4. Remedies available to the petitioner.

Analysis:

1. Opportunity to cross-examine the Chemical Examiner:
The petitioner sought a Writ of Certiorarified Mandamus to challenge an order dated 01.09.2015 issued by the respondent, requesting permission to cross-examine the Chemical Examiner whose report was pivotal in the impugned order. The petitioner argued that the denial of this opportunity was a violation of principles of natural justice, citing a previous judgment to support their claim.

2. Denial of natural justice:
The petitioner contended that the respondent should have allowed the cross-examination of the Chemical Examiner, especially since the report influenced the decision that the product in question was not a Fertilizer. The respondent, through the Standing Counsel, argued that the Chemical Examiner's report was considered at the petitioner's request and was not the sole basis for the decision. The respondent maintained that even without this report, a conclusion was reached that the product did not qualify as a Fertilizer.

3. Validity of the impugned order without relying on the Chemical Examiner's report:
The Standing Counsel emphasized that the impugned order would stand even if the Chemical Examiner's report was disregarded. It was asserted that the petitioner could challenge the order before the appellate authority, which could decide the matter independently of the report. The court concurred, allowing the petitioner to file an appeal against the order and directing the appellate authority to review the case without considering the Chemical Examiner's report.

4. Remedies available to the petitioner:
The court granted the petitioner the liberty to appeal the impugned order within ten days, bypassing any limitation concerns due to the prior writ petition. The appellate authority was instructed to evaluate the appeal on its merits and in accordance with the law, excluding reliance on the Chemical Examiner's report. The writ petition was disposed of without costs, and the connected Motion Petition was closed.

This judgment highlights the importance of procedural fairness, the right to cross-examine key witnesses, and the availability of appellate remedies in challenging administrative decisions. The court's decision aimed to ensure a fair review process for the petitioner while upholding principles of natural justice.