2020 (7) TMI 705 - AT - Customs

Principles of Natural Justice - request of the appellant for cross examination of the witnesses has been rejected during the adjudication proceedings in the SCN - Section 138B of CA - HELD THAT - From the plain reading of clause (b) of sub section 1 of section 138(b), it is clear that the statement made and signed by person before the Custom Officer can be admitted as evidence when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. In the above section, no exception is provided or any discretion is provided for the Adjudicating Authority to allow or not to allow the cross examination. Particularly, in the present case, when the appellant have vehemently requested the cross examination of the witnesses. The Adjudicating Authority cannot have his own assumption and presumption that whether anything will come out from the process of cross examination. It is up to the defendant that whether the cross examination will help for his defence. The cross examination is a vital part of principles of natural justice. The appellant should be allowed cross examination, the witnesses except the SIO. The SIO is part of the investigation and the Show Cause Notice has relied upon various statements, letters and opinions. The cross of SIO is unwarranted - the learned Principal Commissioner being adjudicating authority shall grant cross examination of witnesses as requested by the appellant - Appeal allowed.

Summary

Issues:
Request for cross-examination of witnesses during adjudication proceedings.

Analysis:
The appeal was against the order rejecting the appellant's request for cross-examination of witnesses during the adjudication proceedings. The appellant argued that cross-examination was essential for their defense and relied on a judgment of the High Court where cross-examination was allowed in a similar case. The Principal Commissioner's reason for denial was the apprehension of delaying the proceedings. The Adjudicating Authority had allowed cross-examination for other co-noticees in the same case, leading to inconsistency. The Revenue representative supported the rejection, citing various judgments.

The Tribunal examined both sides' arguments and the Adjudicating Authority's reasoning. The Authority rejected the request stating that cross-examination would only delay proceedings without bringing out new facts. The Tribunal disagreed, emphasizing that the adjudication process cannot be expedited at the cost of natural justice. The Authority's reliance on the likelihood of delay as a reason for denial was deemed insufficient. The Tribunal highlighted the importance of cross-examination in bringing out the truth and the defendant's right to it for their defense.

The Tribunal referred to Section 138B of the Customs Act, emphasizing the relevance of statements made by witnesses during inquiry or proceedings. It highlighted that evidence can only be admitted when witnesses are cross-examined, as per the interests of justice. The Tribunal concluded that the appellant should be allowed to cross-examine witnesses, excluding the Senior Intelligence Officer (SIO) as part of the investigation. The judgment emphasized the principles of natural justice and the defendant's right to cross-examination for a fair adjudication process. Consequently, the appeal was allowed, granting the appellant the right to cross-examine witnesses as requested.