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TMI Blog2016 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... re the officer, who submitted the test report was not examined by the Department nor he is a witness nor any statement has been recorded from him. In fact, the report can be treated as a public record and the contents of the report are a proof to themselves. In such circumstances, the petitioner cannot seek for cross examination of the officer, who gave the report - the contention raised by the petitioner that they have to be permitted to cross examine the Chemical Examiner of the Central Laboratory is a misconceived plea - rejection of request of cross examination of the petitioner upheld. Appellant entitled to appeal - petition dismissed - decided against petitioner. - W. P. Nos. 33741 & 33742 of 2016 W. M. P. No. 29113 & 29114 of 2016 W. P. No. 33741 of 2016 - - - Dated:- 30-9-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. Vijay Narayanan Sr., counsel Assisted by Mr.Hari Radha Krishnan For the Respondents : Mr. T. R. Senthil Kumar Senior Panel counsel ORDER Heard Mr.Vijay Narayanan learned Senior counsel assisted by Mr.Hari Radha Krishnan, learned counsel for the petitioner and Mr.T.R.Senthil Kumar learned Senior Panel counsel appearing for the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the drawl of sample on 30.12.2013 and that the importer might have replaced the sample drawn with pre-filled cans at the point of drawl. However, he denied having helped the importer in substitution of the sample. A second statement was recorded from the Superintendent on 27.01.2014, wherein he stated to have admitted that he had received the pre-filled samples from the importer's son (petitioner in W.P.No.33742 of 2016) and he had handed over the original samples taken from the containers to the importer's son and substituted samples were handed over to the Inspector, ICD, Irugur. Further, in the statement, the Superintendent is said to have stated that he was informed that the goods imported are inferior variety of CBSF and that is why necessity was there for replacement of the sample. Subsequently, sample was taken and properly sealed and sent to the Central Laboratory, who had certified that the samples were base oil vide report dated 01.06.2014. 5. The importer was examined under Section 108 of the Customs Act and statement was recorded on 11.08.2014, wherein he appears to have denied all the charges. The Test Reports dated 10.09.2014, were received from Central Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Senior counsel referred to the decision of the Hon'ble Supreme Court in Civil Appeal No.5278 of 2006, dated 04.09.2015, in Commissioner of Central Excise, Nagpur vs. Mattel Toys India Private Ltd., wherein the appeal filed by the Revenue as against the order of the CESTAT reported in 2015 320 ELT 628 (Tri-Mumbai) [Gujarat Small Scale Industries Corporation vs. Commissioner of Customs, Ahmedabad] was dismissed. It is submitted that in the said case also, the Hon'ble Supreme Court confirmed the order of the Tribunal, which accepted the case of the assessee that denial of the right of the cross examination, has infringed the principles of natural justice. On the above submission, the learned Senior counsel submitted that the matter may be remanded to the respondent for fresh consideration and the respondent may be directed to afford an opportunity to the petitioner to cross examine the officer who submitted the test reports. 7. The learned Senior Panel counsel appearing for the Revenue contended that the Writ Petition is not maintainable, as the petitioner has not exhausted the alternate remedy available to them before the Commissioner and all the issues raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandan Nagar v. Dunlop India Limited, . 8. In Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited (Supra) the Supreme Court observed: In Titaghur Paper Mills Co. Ltd. v. State of Orissa, A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1983 SC 603 Assistant Collector of Central Excise, Chandan Nagar vs. Dunlop India Limited reported in AIR 1985 SC 330). 11. Further, it was pointed out that the Hon'ble Supreme Court in the case of Titaghur Paper Mills Company Ltd. (supra), held that the appellant therein had pleaded that there was violation of natural justice and the impugned order was without jurisdiction, yet the Supreme Court held that the petitioner should avail his alternate remedy of appeal. 12. If the above legal principles are applied, then the only conclusion that can be arrived at is to relegate the petitioner to avail the alternate remedy. However, it has to be seen as to whether there are any good and valid reasons for not doing so, and the Court proposes to test the contentions raised in this regard. 13. It is brought to the notice of this Court that as against the order passed in W.P.No.24350 of 2016, filed by the Superintendent of Central Excise against the very same order-in-original, dated 29.04.2016, he has filed W.A.No.1171 of 2016 and the Hon'ble Division Bench has granted an order of stay. On a perusal of the interim order granted by the Hon'ble Division Bench, dated 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the petitioner to put forth the case that their request at the time of personal hearing for cross examination should be considered. This argument raised by the learned Senior counsel for the petitioner is therefore rejected. 16. Nextly, it has to be seen as to whether the decision rendered in Thilagarathinam Match Works(supra), will any manner advance the case of the petitioner. The said Writ Petition was filed by an assessee challenging the order passed by the Enquiry Officer rejecting the request for cross examination of certain officers and persons in an enquiry, in pursuance of the show cause notices issued under Section 11A of the Central Excise Act, 1944. In the annexures to the show cause notices, the respondents therein relied upon the reports of the Energy Auditor as well as the statements of some officers and witnesses and therefore, the petitioner made a request for cross examination of those officers and witnesses. This request was rejected stating that the petitioner therein did not state the reason for cross examination. This order was faulted and set aside stating that no reasons need be given for requesting cross examination and the Writ Petition was allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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