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TMI Blog2013 (11) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... ss-examination of the Chief Chemist (DGH), whose opinion is relied in the show cause notice, is also wholly unjustified - Decided in favour of assessee. - Appeal No.C/13445/2013-DB - Order No. A/11412/2013 - Dated:- 28-10-2013 - MR.M.V. RAVINDRAN AND MR. H.K. THAKUR, JJ. For the Appellant : Shri S. Purohit, Adv. For the Respondent : Shri K. Sivakumar, Addl.Commissioner (A.R.) JUDGEMENT Per: M.V. Ravindran 1. The appellant has challenged an Order passed on 15-10-2013 by the adjudicating authority and communicated to the appellant vide Record of Personal Hearing, rejecting request for examining witnesses and allowing their cross-examination despite specific reliance by the appellant on Section 138B of the Customs Act, 1962, as also a judgment of Hon ble Delhi High Court in Basudev Garg vs Commissioner of Customs, 2013 (294) ELT 0353 (Del.) in which the said section was considered at length. The appellant is also aggrieved by rejection of the request for allowing cross-examination of the Chief Chemist (EC), DGH, whose opinion is relied against them in the SCN despite being without support of any statutory provisions and also contrary to the law laid down by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sudev Garg (supra). 2.6 However, the request was rejected again without dealing with any of the submissions made and precedent cited by the Appellant. The rejection of request by the adjudicating authority was recorded and communicated vide Record of Personal Hearing, and hence the appellant has preferred the appeal. 3. We find sufficient merit in the arguments of the Ld. Counsel appearing for the appellant on the basis of clear language of section 138B of the Customs Act, 1962 as also the binding precedents relied by him. The Departmental Representative could neither justify the departure by the adjudicating authority from the procedure prescribed under section 138B, nor could he produce any precedent showing contrary view taken after consideration of section 138B. 4. While reproducing section 138B of Customs Act, 1962 and considering its scope vis-`-vis denial of request for cross-examination, it was observed by the Hon ble High Court in Basudev Garg (supra) that- 11. We may straightaway say that the provisions of Section 9D of the Central Excise Act, 1944 are identical to the provisions of Section 138B of the Customs Act, 1962 which would be applicable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f some of the witnesses without undue delay or expense. Whether such a finding was otherwise justified or not can be taken up in the appeal. 14. The Division Bench also observed that though it cannot be denied that the right of cross-examination in any quasi judicial proceeding is a valuable right given to the accused/Noticee, as these proceedings may have adverse consequences to the accused, at the same time, under certain circumstances, this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in Section 9D of the Central Excise Act, 1944. The circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to cross-examine the persons whose statements are bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se circumstances mentioned in section 138B(1)(a) are also contained in pari materia section 9D(1)(a) and were recorded as follows in J.K. Cigarettes Ltd, 2009 (242) ELT 353 (Del)- 25. Section 9D of the Act stipulates following five circumstances, already taken note of, under which statements previously recorded can be made relevant. These are :- (a) when the person who had given the statement is dead; (b) when he cannot be found; (c) when he is incapable of giving evidence; (d) when he is kept out of the way by the adverse party; and (e) when his presence cannot be obtained without an amount of delay or expense, which the Officer considers unreasonable. These circumstances show that if witness cannot be examined for any of these five reasons, the statement previously recorded would be relevant. The adjudicating authority was therefore bound to follow the binding precedent and in absence of any specified circumstance to consider the statement relevant without examining the witnesses, erred in rejecting the request of the appellant to examine the witnesses and to offer them for cross-examination. 7. The judgment of Hon ble Delhi High Court in Slotco S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 28 of the judgment of Hon ble Apex Court in Vinod Solanki vs Union of India, (2008) 16 SCC 537, that section 24 of the Evidence Act would be attracted in case of the statement recorded under section 108 of the Act. 10. We therefore find force in the submission of the Ld. Counsel for the appellant. We find no reason to justify rejection of request made by the appellant to the adjudicating authority in light of section 138B of the Act, to summon witnesses for examination and to offer them for cross-examination if their statements were to be considered as relevant and admitted in evidence in the interest of justice. 11. We also find that the denial of request to permit cross-examination of the Chief Chemist (DGH), whose opinion is relied in the show cause notice, is also wholly unjustified. 12. The appeals are therefore allowed with direction to the Respondent adjudicating authority to follow section 138B and to forthwith summon the witnesses for examination under intimation to the appellant, and to offer them for cross-examination by the appellant if their statements are to be considered as relevant and admitted in evidence in the interest of justice. The appellant is also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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