2020 (11) TMI 759 - HC - Customs

Principles of natural justice - rejection of cross-examination of petitioners - Section 138(B) of the Customs Act, 1962 - HELD THAT - This Court is of the considered view that the petitioner has approached this Court prematurely without allowing the respondents to pass final orders. The petitioner has made it clear before the respondents that they intend to cross examine the witnesses, which were referred to by the respondents in the annexures attached to the show cause notice dated 17.10.2018. The respondents have rejected the request of the petitioner, but till date, final order has not been passed. If the respondents have not followed the statutory provisions as mandated under the Customs Act, 1962 by not allowing the petitioner to cross examine the witnesses, the petitioner is always at liberty to challenge the final order as and when passed by the respondents either before this Court or before the Appellate Authority, as the case may be. Admittedly, no final order has been passed by the respondents and the respondents have only issued the show cause notice and on receipt of the same, the petitioner has requested the respondents to permit him to cross examine the witnesses mentioned in the annexure to the show cause notice. The said request has been rejected by the respondents under the impugned order - in the case on hand, the petitioner has approached this Court prematurely, without allowing the respondents to pass final order after hearing the petitioner pursuant to the show cause notice issued by them on 17.10.2018 under Section 28 of the Customs Act, 1962. The petitioner has approached this Court prematurely as the respondents have only rejected the request made by the petitioner for cross examination of witnesses on the ground that the entire case is based on documentary evidence and there is no necessity for cross examination of witnesses. If there is any legal right available to the petitioner, as contended by them in this writ petition to cross examine the witnesses, they are always at liberty to raise the same as and when any adverse order is passed against them by the respondents through its final orders pursuant to the show cause notice dated 17.10.2018 issued under Section 28 of the Customs Act, 1962 - as on date, there is no merit in this writ petition as it has been filed prematurely. Therefore, the writ petition stands dismissed.

Summary

Issues:
Challenging rejection of request for cross-examination in a writ petition under Customs Act.

Analysis:
The writ petition challenges the rejection of the petitioner's request to cross-examine witnesses in a case under the Customs Act. The petitioner argued that since no confessional statement was made, they have the right to cross-examine witnesses under Section 108 of the Customs Act. The respondents issued a show cause notice based on statements from various sources but did not allow cross-examination. The petitioner contended that under Section 138(B) of the Customs Act, they have a legal right to cross-examine witnesses relied upon by the respondents.

The court noted that no final order had been passed, only a show cause notice issued. The petitioner approached the court prematurely without allowing the respondents to finalize the matter. The court emphasized that if the respondents did not follow statutory provisions by denying cross-examination, the petitioner could challenge the final order later. The petitioner cited Section 138(B) to support their right to cross-examine witnesses not based on their confessional statement.

The petitioner referred to legal judgments to assert their entitlement to cross-examine witnesses under Section 138(B). The respondents argued that the writ petition was premature as no final order had been issued, only the request for cross-examination was rejected. They contended that any grievance could be addressed before the Appellate Authority. The respondents maintained that the case was based on documentary evidence, not necessitating witness cross-examination.

The court dismissed the writ petition as premature, emphasizing that the petitioner should await final orders before challenging the decision. It was clarified that the respondents must consider all objections raised by the petitioner, including the request for cross-examination, while passing the final order under the Customs Act. The court highlighted that the petitioner could challenge any adverse order in the future if their contentions were not addressed in accordance with the law.