2020 (2) TMI 641 - AT - Customs

Principles of Natural Justice - opportunity for cross-examination denied - HELD THAT - The appeal against the communication rejecting the request for cross examination should normally not be entertained by the appellate authority such as CESTAT, because it is an interim order and even the adjudicating authority has not determined the issues involved in the matter - Appellate authority can and should examine all the issues including the rejection of request of cross examination, only if the adjudication order passed by the adjudicating authority is challenged in appeal before it in terms of Section 129 A (1) of Customs Act, 1962. There is no bar in the law for the appellants to approach the adjudicating authority himself for reconsideration of the request for cross examination. To the specific query made by the bench as to whether after receiving the communication, have they approached the adjudicating authority for reconsideration of their request for cross examination, the counsel for appellant has replied in negative - It is settled principle in law that new adjudicating authority has to consider the matter afresh and cannot rely on the rejection made by the earlier adjudication authority in the matter. Hence it will be appropriate for the appellants to approach the new adjudicating authority with their request for cross examination, who should consider the same without any bias on account of rejection made by his predecessor. Appeal allowed by way of remand.

Summary

Issues: Denial of cross-examination by the Commissioner of Customs and the right to appeal the decision.

Denial of Cross-Examination:
The appeal challenged the denial of cross-examination of officers from the DGFT and Customs department by the Commissioner of Customs. The appellant argued that cross-examination is a part of natural justice and should have been allowed. The Commissioner, however, rejected the request citing that the officers had only discharged their statutory duties and their statements were not relied upon. The appellate authority, CESTAT, noted that entertaining appeals against such interim orders could lead to pre-judging issues not yet determined by the adjudicating authority. The CESTAT emphasized that it could examine the rejection of cross-examination only if the adjudication order was challenged in appeal as per the Customs Act, 1962.

Right to Appeal the Decision:
The CESTAT clarified that there was no legal bar preventing the appellants from approaching the adjudicating authority directly for reconsideration of the cross-examination request. The appellants had not approached the new adjudicating authority, despite the change in personnel since the initial communication. The CESTAT emphasized that the new adjudicating authority must consider the request afresh without bias from the previous rejection. The appellants were advised to approach the new adjudicating authority with their cross-examination request, ensuring a fair consideration without influence from the earlier decision.

In conclusion, the CESTAT disposed of the appeal, allowing the appellants to approach the adjudicating authority for reconsideration of the cross-examination request. The judgment highlighted the importance of following due process and seeking reconsideration from the new adjudicating authority to ensure a fair and unbiased assessment.