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TMI Blog1987 (2) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/-, the appellants have filed the present appeal. 2. Factual backdrops: As a result of surprise visit on 2.7.82, to the factory of the appellant, a squad of Central Excise Officers found the excess stock of 20,72,525 Biris lying in B.S.R./labelling room in partly open condition. The same were seized under a proper panchnama for contravening the provisions of Central Excise Rules. After the usual investigation, a Show Cause Notice, calling upon the appellants to show cause as to why the seized biris be not confiscated and why duty on total 35,84,525 labelled biris be not recovered and also why penalty be not imposed upon them under the Central Excise Rules was issued. In reply, the appellants contended that there was no excess or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also not correct, and therefore, the appellants wanted to cross-examine the said panch witnesses to unfold the falsity of the Department's case. In reply, Smt. Nisha Chaturvedi, Learned S.D.R. stated that cross-examination in quasi-judicial proceedings is not necessary as it is not an essential part of natural justice. To substantiate her contention she cited the case of M/s. Kanungo & Co., v. Collector, Customs, Calcutta, A.I.R. 1972 S.C. 2136. 5. After perusing the record in the light of the arguments advanced by the parties, I am of the view that the appeal should be allowed by remand. To begin with it may be stated that in their reply to the Show Cause Notice, the appellants challenged the veracity of the panchnama said to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Officers concerned came up at about 18.00 hours on 2.7.82, but did not find any discrepancy and left the factory with the message that they would be coming after attending the marriage function scheduled to be celebrated that night at Dongargarh. That the said Officers came to the factory again after 24.00 hours mid-night on 3.7.82 and in a high-handed manner started checking the factory of the appellants. In this context the appellants wanted to avail themselves of an opportunity to cross-examine the panch (mahazar) witnesses to unfold the falsity of the Department's case. From the impugned Order I also observe that reliance has been placed on the panchnama (mahazar) in order to substantiate the charge against the appellants. Under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be cross-examined by them on the statements made before the Customs Authorities." Thus, from the facts of that case it is clear that the said case was not the case where the party wanted to cross-examine the panch witnesses. What was argued in that case was that the Department should have produced the persons from whom enquiries were alleged to have been made by the authorities for examining them like the Civil Court where the witnesses are first examined by the prosecution and then the party is given an opportunity to cross-examine them in accordance with the provisions of the Evidence Act. In this view of the matter I am supported by the decision rendered by the Orissa High Court in the case of Ram Kishan Agarwala v. Collector of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses and cross-examination being part of procedural justice and governed by rules of evidence, they are creation of courts and not part of natural justice as it is understood In jurisprudence." Repelling the contention, the Tribunal held as under :- "I have considered the submissions of the parties herein. At the outset I should mention that the main charge against the respondent, who is admittedly a pawn broker, is one under Sec. 6(2) of the Act for non-accountal of jewelleries under seizure. The main contention of the respondent is that the very seizure was from his residence and not from the business place and the question of accountal would not arise if the seizure was from the house. It is in this context the respondent wanted to avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be relevant to the facts of the present case. The fundamental principle of affording a party an opportunity to cross-examine in a situation where reliance is placed against a person on certain document has been succinctly explained in the ruling relied upon by the learned counsel for the respondent referred to supra. Therefore, taking into consideration the background of this case, the nature of the charge against the respondent, the importance of the mahazar for bringing home such a charge, I feel that interests of justice require that the respondent should be afforded an opportunity of cross- examination. In this view of the matter, I am inclined to uphold the impugned order appealed against and dismiss the appeal." 6. In the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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