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TMI Blog2018 (9) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, Udaipur from the income tax Department, the Department after necessary investigations, alleged that the assesse/ appellant has evaded the Central Excise duty amounting to Rs. 1,63,06,00,000/- in respect of the notified goods i.e. chewing tobacco produced/ manufactured by them without declaring the number of machines and part of section/ place of manufacture and cleared without recording the production in the stock, without assessing and without payment of duty thereby contravening the provisions of Rule 6, 7 and 9 of Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 thus rendered these goods cleared without payment of duty i.e. being clandestine removal, liable to confiscation under Rule 25 of Central Excise Rules, 2002 read with Rule 18 of Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. 3. Resultantly, a Show Cause Notice bearing No. 5341 dated 03.05.2017 was served upon the appellant proposing the recovery of the alleged unpaid, aforesaid amount of duty alongwith appropriate interest and the penalties under Central Excise Act, 1944 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ld. DR has relied upon Kanpur Cigarettes Ltd. Vs. Union of India 2016 (344) ELT 82, Uma Nath Pandey Vs. State of UP 2009 (237) ELT 241 (S.C.), Oriental Carbon & Chemicals Ltd. Vs. CCE 2016 (331) ELT 219 (All.) and CE, Mumbai Vs. CEAT Ltd 2014(308) ELT 99 (Tri.- Mumbai) 7. After hearing both the parties and perusing the entire record, we observe and hold as follows:- The Order under challenge was passed on 08.06.2018 and the Appeal thereof was filed before this Tribunal on 29.06.2018. Perusal of record shows that since the day of filing till 31.08.2018, the appellant did not appear before this Tribunal when it was placed before the Single Member Bench. Due to the findings recorded in the said order, the said bench directed registry to list the appeal before the Division Bench. It is also apparent from the said order that by that time the order of Hon'ble Rajasthan High Court was in existence with a time bound direction of disposal of this Appeal within a month. Accordingly Ld. Member Technical directed the registry for putting up the matter for urgent consideration. There is no single utterance about any request of the appellant to ever has prayed for early hearing of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof makes it clear that while exercising this power the relevant provisions of Civil Procedure Code , 1908 (CPC in short) and that of Criminal Procedure Code , 1973 (Cr.PC in short) are applicable. Order 16 and Order 18 of CPC prescribes the stage and the procedure for examination of the witnesses. As per Order 16 Rule 1 CPC, the Court has to summon witness after the issues in the case, to be adjudicated, are settled by the Court i.e. after the trial has begun. As per Order 18, it is first party to the suit who has to begin examination of his witnesses and as per Rule 4 CPC thereof, examination in Chief of witness has first to be recorded which is to be followed by cross examination and reexamination of the said witness. 9. If the procedure scheme in a criminal case is seen, the date of evidence arrives after the charge against the accused is framed i.e. after the trial of criminal adjudication begins. In the criminal matter, prosecution is the first party to begin the evidence as per Section 230 and Section 242 of Cr. PC. It is thereafter that the accused/ opponent may make a request to the adjudicating authority to permit him to cross examine any of the witness. The perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be cross examined as was held by Hon'ble Apex Court in the case Sukhwant Singh Vs. State of Punjab 1995 (3) SCC 367. Karnataka High Court in another case Yellappa Vs. Murari ILR 1997 (Kar.) 3207 as held that when a witness who has not given his evidence in chief examination is permitted to be cross examined by his opposite party then such evidence is illegal and so inadmissible to be relied upon by the Court or by the Tribunal. 11. By applying all these principles to the fact of the present case we observe that the Department has just issued a Show Cause Notice which is based on prima facie material and is nothing more than constituting a prima facie opinion. At the stage of Show Cause Notice, there is no adjudication. It is only a step in process of adjudication because the Show Cause Notice in itself is not an order of assessment. The said order has to be passed post issuance of Show Cause Notice after affording an opportunity of hearing the parties and after considering the evidence and material which is placed before the adjudicating authority, the Central Excise Commissioner in the present case. 12. As already observed above after receiving the Show Cause Notice, the only p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st party and tested by the cross examination on behalf of the said second party. 14. We follow the adjudication of Allahabad Tribunal in Kanpur Cigarette (supra) case that the question of cross examination of witnesses would arise only when the adjudication proceedings commence after the stage of filing reply to the Show Cause Notice. Neither statutory nor any principle of natural justice requirement exists for allowing cross examination at a stage of receiving the mere Show Cause Notice. 15. In view of entire above discussion, it is held that the request of the appellant in question was a premature request before the Commissionerate hence the Order under challenge needs no interference. However, the Commissioner is hereby required, irrespective of the appellants filing any reply to the Show Cause Notice or not, to follow the principles of adjudication as far as the examination of the witness and cross examination thereof is concerned, as discussed above. The adjudicating authority below/ Commissioner is required to reconsider the request of the appellant at the appropriate stage. However, keeping in view that the basic concept behind the cross examination is fair play, it being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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