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TMI Blog2011 (1) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 7-1-2011 - S/Shri P.G. Chacko, Sahab Singh, JJ. REPRESENTED BY : S/Shri Anil Balani and Sujay Kantawala, Advocates, for the Appellant. Shri A.K. Prasad, JCDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. These applications seek waiver of pre-deposit and stay of recovery in respect of the penalty amounts. The adjudicating authority imposed penalties of Rs. 25 lakhs, Rs. 1.25 crores, Rs. 50 lakhs respectively on the appellants in appeal C/639, 640 and 644/09 under Section 114(i) of the Customs Act. The learned counsel for the appellants have raised mainly the grievance of negation of natural justice. They have referred to the relevant records and have made an endeavour to show that a reasonable opportunity of being personally heard was not given by the Commissioner before passing the impugned order. It has also been submitted that their claim for cross- examining certain officers of customs and others was rejected without hearing them. It has also been submitted by the counsel for the first two appellants that those documents, which were seized from their premises by the investigating agency but not relied on in the show-cause notice, were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of certain documents. The adjudicating authority did not accede to their request for cross-examination and also stated that his reasoning would be communicated through the final order of adjudication. As regards the request for supply of non-relied-upon documents, the adjudicating authority noted that its earlier direction for submission of a specific list of such documents had not been complied with. However, the learned Commissioner accepted their offer to furnish a list by 10-1-2009. With regard to the request of the parties for supply of information regarding travel particulars, the learned Commissioner maintained that such information was extraneous to the adjudication proceedings. It appears from the records that the list of documents which these appellants had promised to file on 10-1-09 was not submitted at all by them. On 24-3-09, Mr. Rajendra G. Bhutada submitted a letter to the Commissioner informing him that he had challenged his decision dated 16-12-09 before the Hon ble Bombay High Court and, therefore, the hearings should be deferred. The learned counsel for Mr. Bhutada has submitted that the writ petition was withdrawn. The Jt. CDR has placed on record sufficient ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel includes Silicon Graphics System (India) Pvt. Ltd. v. Union of India, 2006 (204) E.L.T. 247 (Bom.), wherein it was held by the Hon ble High Court that documents seized from the party but not relied-upon in the show-cause notice required to be returned to them. It was held that the request for such return of documents to enable preparation of a reply to the show-cause notice could not be held to be frivolous. The High Court s decision was followed by this Bench in the case of Shripra Alloys Ltd. v. Commissioner, 2007 (220) E.L.T. 297 (Tri.-Mum.). Today, it is trite law that any document seized by an investigating agency but not found to be reliable for the Revenue should be returned to party who might require it in support of his own defence vis-a-vis the allegations in the show-cause notice. In the present case, we have found that the non-relied-upon documents were not returned to the appellants. 4. Bhutadas did not get a third opportunity of being personally heard. In this connection, the learned Jt. CDR has also referred to Section 122A of the Customs Act. This provision was considered by a Co-ordinate Bench of this Tribunal in the case of Jindal Waterways Ltd. v. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not given a reasonable opportunity of being heard cannot be rejected. 6. It is settled law that cross-examination of witness cannot be claimed as a matter of right by any person involved in an adjudication proceedings. At the same time, this Tribunal, High Courts and the Supreme Court have held in a plethora of cases that the request of a party to cross-examine a witness has to be examined on its merits. Cross-examination is a part of evidence-taking whether it be before an adjudicating authority or before a court. Personal hearing follows evidence-taking . The proceedings must culminate in an order. In the present case, the learned Commissioner apparently took the stand that his reasoning for not acceding to the request for cross-examination would be mentioned in the final order. This, in our view, does not conform to the rule of natural justice. Once a witness has been cross-examined, it is open to either side to claim support from the record of cross-examination, at the final hearing stage. If the reasoning for denying cross-examination are stated only in the final order, the whole proceedings should be held to be violative of the principles of natural justice. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken thereupon, which should be intimated to the appellants. Personal hearing will then follow. 7. We would also like to make it clear that the Commissioner shall have no liability to furnish any information to the appellants if he finds that such information belongs to extra-departmental authorities. It is open to the appellants to invoke the provisions of the Right to Information Act to obtain the information from such authorities. The obligation of the Commissioner pertains exclusively to the documents which are within his command. 8. In the result, we set aside the impugned order and allow these appeals by way of remand with a request to the Commissioner of Customs to undertake de novo adjudication of the case in accordance with law and in terms of the directions contained herein, by scrupulously following the principles of natural justice. Needless to say that a speaking order has to be passed on all issues. In the nature of this case, the learned Commissioner has to pass final order within a period of six months from the date of receipt of a certified copy of this order. The learned counsel for the appellants, under instructions from the clients, undertake to co-operate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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