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TMI Blog2013 (1) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the said notice be not taken against the petitioner (and others). 4. The petitioner filed a writ petition before this Court being Civil Misc. Writ Petition No. 143 of 2000. By the Order dated 11-2-2000, this Court disposed of the writ petition, inter alia, directing that photostat copies of all the relevant documents, which were to be relied upon against the petitioner must be supplied to the petitioner before proceeding further in the matter. 5. It is not disputed that photostat copies of the relevant documents relied upon against the petitioner have since been supplied to the petitioner. 6. It further appears that personal hearing in the matter has been going on before the respondent No. 3. 7. A perusal of the proceedings dated 14-12-2011 shows that the petitioner made prayer for cross-examination of various persons (including the co-noticees), whereupon the petitioner was asked to submit fresh list (excluding the co-noticees), keeping in view the points mentioned in the said order dated 14-12-2011. 8. A perusal of the proceedings held on 11-1-2012 shows that summons were directed to be issued to the witnesses excluding the co-noticees. 9. On 13-8-2012, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the said order dated 27-12-2012, it appears that the petitioner has submitted a letter dated 31-12-2012, inter alia, stating that Part A of the reply is being filed by the petitioner. 16. The petitioner has, thereupon, filed the present writ petition seeking the reliefs as mentioned above. 17. We have heard Sri. K.N. Tripathi, learned senior counsel assisted by Sri K.K. Arora, learned counsel for the petitioner and Sri S.P. Kesarwani, learned senior standing counsel appearing for the respondent Nos. 1, 2 and 3. 18. It is submitted by Sri. K.N. Tripathi, learned senior counsel appearing for the petitioner that cross-examination of the witnesses whose statements were recorded by the authority was necessary prior to the submission of reply by the petitioner as the cross-examination would enable the petitioner to properly defend its case. 19. Sri. K.N. Tripathi, learned senior counsel appearing for the petitioner has relied upon the decision of the Supreme Court in Lakshman Exports Limited v. Collector of Central Excise, 2002 (143) E.L.T. 21 (S.C.). 20. Sri. S.P. Kesarwani, learned senior standing counsel appearing for the respondent Nos. 1, 2 and 3 submits that pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to reply to a show cause notice. Those judgments as already explained were in the course of adjudicating proceedings. Is, therefore, an assessee entitled to cross examine the witnesses at the stage of filing a reply to the show cause notice? A show cause notice is issued on the basis of uncontested material available before the Assessing Authority, who based thereon, has arrived at prima facie finding whether a show cause notice ought to be issued or not. The material, thus, which has to be considered is, untested and uncorroborated. A party is called upon to reply to the said show cause notice in order to enable the Revenue to know the stand of the assessee, in the context of the material produced as to whether the proceedings should be further proceeded with. It is an opportunity to the party being proceeded against to disclose any material that the party may have to rebut the prima facie opinion, even if, the assessee fails to reply to the show cause notice, that, does not amount to an admission of the contents of the show cause notice in the absence of any statutory provision and it is always open to an assessee to cross-examine the witnesses whose statements are re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf is not an order of assessment. The order of assessment will be passed only after considering the evidence and the material, which is placed before the quasi judicial authority/Tribunal. Therefore, as the show cause notice is based on prima facie material and constitutes a prima facie opinion, that does not result into an order of adjudication. The question, therefore, of an assessee being entitled to cross-examination, even before the adjudication has commenced, would not arise. It is only after the adjudication proceedings have commenced pursuant to the show cause notice and if the Revenue seeks to rely upon the statements or documents, then the principles of natural justice would require in the absence of any statutory provision, that the person whose statement was recorded is made available for cross-examination to test the veracity of the statement. 27. There is no requirement in the Act or Rules nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon to issue the show cause notice, are liable to be cross-examined at that stage. 28. It has been concluded that there is no right, procedurally or su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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