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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 ..... aw laid down by this Tribunal in Clough Engineering Ltd., 2006 (198) ELT 457 (T), upheld by the Hon'ble Apex Court in CC Vs. Clough Engineering Ltd., 2006 (202) ELT A59 (SC). The issue involved in the appeal is therefore in narrow compass and does not require any detailed appreciation of evidence as such. 2. After hearing both sides and considering carefully the records, the following undisputed facts are noted - 2.1 That a show cause notice dated 26.9.2013 was issued to the appellant which is answerable to the Respondent adjudicating authority. The show cause notice seeks to deny benefit of Notification No. 021/2002 dated 01.03.2002, demands duty with interest and proposes imposition of penalty on the appellant by relying inter alia on statements of witnesses recorded under section 108 of the Act before gazette officers of Customs, as also on the opinion of Chief Chemist (DGH). 2.2 The show cause notice was issued only after the order dated 05.09.2013 passed by the Hon'ble Bombay High Court in a WP (Civil) 8022/2013 preferred by the appellant, directing the department to issue a show cause notice to the Appellant within four weeks from 05.09.2013 with further direction that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 138B of the Customs Act, 1962 which would be applicable in the present case. 12. Section 138B of the Customs Act, 1962 reads as under :- 138B. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) When the person who made the 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 or expense which, under the circumstances of the case, the court considers unreasonable or (b) 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 interest of justice. (2) The provisions of sub-section (1) shall so far as may be apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances 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 being relied upon even in quasi judicial proceedings. The Division Bench also observed as under :- 29. Thus, when we examine the provision as to whether the provision confers unguided powers or not, the conclusion is irresistible, namely, the provision is not uncanalised or uncontrolled and does not confer arbitrary powers upon the quasi judicial authority. The very fact that the statement of such a person can be treated as relevant only when the specified ground is established, it is obvious that there has to be objective formation of opinion based on sufficient material on record to come to the conclusion that such a ground exists. Before forming such an opinion, the quasi judicial authority would confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore 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 Steel Products Pvt Ltd, 2012 (281) ELT 193 (Del.) also relies on J.K. Cigarettes Ltd (supra). 8. The appellant has also relied on the judgment of Hon'ble Apex Court in Sukhwant Singh vs State of Punjab, (1995) 3 SCC 367 to give emphasis on his submission that examination of witness is mandatory unless specified exceptional circumstances mentioned in clause (a) of section 138B(1) exist. The Hon'ble Apex Court was pleased to hold that- 8. It will be pertinent at this stage to refer to Section 138 of the Evidence Act which provides: 138. Order of examinations. Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness ..... X X X X Extracts X X X X X X X X Extracts X X X X
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