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2018 (1) TMI 1024 - AT - CustomsMaintainability of appeal - order of rejection of cross examination - whether appealable order or not? - Held that - the order rejecting the cross-examination has been issued in the form of a letter. When the right of the appellant for cross-examination has been taken away by the said decision of the adjudicating authority, merely because the same is issued in the form of a letter and not clothed as an order, it cannot be said that the said letter / decision is not an appealable order - The Hon ble High Court of Kerala in the case of Abdul Khader Vs. CESTAT, Bangalore 2016 (11) TMI 614 - KERALA HIGH COURT has categorically held that the order intimating the denial of cross-examination is an appealable order - the denial of cross-examination is unjustified. Rejection of request for supply of documents - Held that - when the department is not put to notice as to what is the document that the appellant seeks to obtain and only a vague request to furnish the entire chain of correspondence between Customs and Excise authorities is made, such request cannot be entertained or allowed. The respondent adjudicating authority is directed to follow section 138B of the Customs Act and to permit cross-examination of the witnesses - appeal allowed in part by way of remand.
Issues Involved:
1. Maintainability of the appeal against the letter dated 29.9.2017. 2. Denial of cross-examination of witnesses. 3. Rejection of request for supply of documents. Issue-wise Detailed Analysis: 1. Maintainability of the Appeal: The primary objection by the Revenue was that the appeal against the letter dated 29.9.2017 is not maintainable as it is not an appealable order. The Tribunal, however, held that the letter, which communicated the adjudicating authority's decision to deny cross-examination and supply of documents, is indeed an appealable order. The Tribunal cited the High Court of Kerala's decision in Abdul Khader Vs. CESTAT, Bangalore, which established that an order denying cross-examination is appealable. Similarly, in Swiber Offshore Construction Pvt. Ltd. Vs. CC, Kandla, the Tribunal had held that a letter conveying the rejection of cross-examination is an appealable order. The Tribunal emphasized that the right of cross-examination is a valuable right in quasi-judicial proceedings, and its denial can be appealed. 2. Denial of Cross-Examination: The Tribunal found the denial of cross-examination unjustified. The adjudicating authority had rejected the request on the grounds that the witnesses were employees of the appellant and had not retracted their statements. The Tribunal referred to Section 138B of the Customs Act, 1962, which outlines the conditions under which a statement can be relied upon without cross-examination. The Tribunal noted that none of these conditions existed in the present case. The Tribunal cited various decisions, including Basudev Garg Vs. Commissioner of Customs, which underscored that cross-examination is a fundamental right unless exceptional circumstances exist. The Tribunal directed the adjudicating authority to permit the cross-examination of witnesses as per Section 138B of the Customs Act. 3. Rejection of Request for Supply of Documents: The Tribunal upheld the adjudicating authority's decision to reject the request for supply of documents. The appellant had requested the entire chain of correspondence between Customs and Excise authorities, alleging that the show cause notice was a verbatim copy of an earlier draft by the Excise authorities. The Tribunal found that the appellant had not specified any particular document and had only made a vague request for the entire chain of correspondence. The Tribunal noted that the appellant could have pursued the matter through the RTI Act by filing an appeal if they were not satisfied with the documents provided. Since the documents requested were not relied upon for issuing the show cause notice and the appellant had not specified the exact documents needed, the Tribunal rejected the appellant's request. Conclusion: The appeal was partly allowed. The Tribunal directed the adjudicating authority to permit the cross-examination of witnesses as per Section 138B of the Customs Act, 1962. However, the Tribunal upheld the rejection of the request for supply of documents. The appeal, early hearing application, and stay application were disposed of accordingly.
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