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TMI Blog2018 (1) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... uch request cannot be entertained or allowed. The respondent adjudicating authority is directed to follow section 138B of the Customs Act and to permit cross-examination of the witnesses - appeal allowed in part by way of remand. - C/Misc./41032/2017 & C/42158/2017 - Final Order No.40084/2018 - Dated:- 10-1-2018 - Ms. Sulekha Beevi C.S., Member ( Judicial ) And Shri Madhu Mohan Damodhar, Member ( Technical ) Shri Vipin Kumar Jain and Shri G. Krishnamoorthy, Advocates for the Appellant Shri R. Subramaniyan, AC (AR) for the Respondent ORDER Per Bench The appeal along with stay application seeking stay of adjudication proceedings came up for hearing on 11.12.2017 and 10.1.2018. On 11.12.2017, the arguments of the appellant was partly heard and adjourned on request of department to this day. After hearing both sides we were of the opinion that the appeal itself can be disposed of as stay of adjudication proceedings would delay the adjudication proceedings unnecessarily and also as there is a direction by the Hon ble Apex Court to complete the adjudication proceedings. 2. Brief facts are that the appellants were issued show cause notice by Customs Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .). It is argued by the ld. counsel that when the request for cross-examination is denied by the adjudicating authority, the appellant need not wait for the passing of the Final order to raise the ground that appellant is prejudiced by the denial of request for cross-examination. In the case of Visal Lubetech Corporation Vs. Addl. Commissioner of customs, Coimbatore - 2016 (342) ELT 201 (Mad.), the jurisdictional High Court had opined that when the appellant during the pendency of adjudication did not appeal against the order of rejection of request for cross-examination, the writ petition filed seeking remedy to set aside the Order-in-Original on the ground of violation of natural justice is not maintainable. That in the said case, the writ petitioners were directed to challenge the Order-in-Original before the Tribunal. The Hon ble High Court therein had observed that the appellant ought to have appealed against the order rejecting the request for cross-examination during the pendency of adjudication proceedings itself. 3.1 Adverting to the reasons stated for denying the request for cross-examination, the ld. counsel submitted that in the impugned letter, the adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these communications were made before the issuance of show cause notice and are not relevant as the allegations have been clearly stated in the show cause notice. The ld. counsel argued that the appellant is entitled to receive the copy of documents even though such documents may not be relied upon by the department for issuing the show cause notice. To support this contention, he relied upon the decision of the Hon ble High Court of Calcutta in the case of M.S. Naina Vs. Commissioner of Customs - 2010 (123) ELT 39 (Cal.). 4. The ld. AR Shri R. Subramanian appeared and argued the matter. He submitted that the appeal is filed against a letter and therefore not maintainable. The appeal is not filed against a decision or order passed by the adjudicating authority. The letter was issued to communicate to the appellants the rejection of their request to cross-examine the witnesses and the rejection of the request for supply of documents. Such a letter cannot be treated as an appealable decision or order. The appellants have requested for cross-examination of the witnesses only to delay the adjudication proceedings. The statements of all the persons whose cross-examination i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law quoted is not relevant to the present case. 3. Further, with regard to cross-examination, all the persons mentioned were the employees of the noticee and none of them have retracted their statements at any point of time. If the noticee finds any inconsistencies in the statements, same can be pointed out in their defense. It is observed that cross-examination of these persons does not serve any purpose for the defense and accordingly same is rejected. 7. In the present case, the order rejecting the cross-examination has been issued in the form of a letter. When the right of the appellant for cross-examination has been taken away by the said decision of the adjudicating authority, merely because the same is issued in the form of a letter and not clothed as an order, it cannot be said that the said letter / decision is not an appealable order. The appellant has relied upon various decisions. The Hon ble High Court of Kerala in the case of Abdul Khader Vs. CESTAT, Bangalore (supra) has categorically held that the order intimating the denial of cross-examination is an appealable order. The relevant portion of the order is reproduced below:- The petitioner, challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w section 138B of the Customs Act, 1962. The relevant portion of the order is reproduced below:- 2.3 Vide letter dated 7-10-2013 the Appellant filed preliminary reply denying the allegations and inter alia contending that they reserves right to file final reply after the examination of the witnesses by the Adjudicating Authority in terms of Section 138B(2) of the Customs Act, 1962, who may be summoned and examined under advance intimation to the Appellant and its Advocate so that in case their statements are considered relevant and admitted in evidence by the Adjudicating Authority, the witnesses can be cross-examined on behalf of the Appellant with permission of the Adjudicating Authority. Cross-examination of Chief Chemist (EC), DGH was also sought. xxx xxxx xxxx xxxx xxxx 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. xxx xxxx xxxx xxxx xxxx 6. We therefore have no hesitation in holding that the impugned Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editing the adjudication process so that it can be completed within the time as directed by the Hon ble High Court. 9. A similar view has been taken by the Hon ble High Court of Delhi in the case of Basudev Garg (supra). The relevant portion of the order is reproduced below:- 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples of natural justice. A mere reading of the above said proposition clearly shows that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies and further that the evidence of the opposite party should be taken in his presence by giving the opportunity of cross-examining the witnesses examined by that party. In the present case, neither any speaking order has been passed nor the respondent justified in not permitting the petitioner to cross-examine the above said eight witnesses. Thus, such attitude of the respondent shows that the petitioner was not given fair opportunity to defend their case, therefore, not providing an opportunity to cross-examine the above said eight witnesses, in my view, would violate the principles of natural justice. Accordingly, the impugned order is set aside and the respondent is directed to permit the petitioner to cross-examine the above said eight witnesses and pass appropriate orders on merits and in accordance with law. Such exercise shall be completed by the respondent within a period of 45 days from the date of receipt of a copy of this order. 9. In fine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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