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TMI Blog2018 (11) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... oluntarily made and are supported by documentary evidences and were also allowed to be perused by the partner of the firm. The authorities have committed a serious error in not allowing the petitioner’s request for cross-examination of the witnesses - impugned order set aside - appeal allowed - decided in favor of appellant. - R/Special Civil Application No. 4266 of 2018 - - - Dated:- 13-7-2018 - Akil Kureshi and B.N. Karia, JJ. Shri Dhaval Shah, for the Petitioner. Shri Mitesh R. Amin, Advocate, for the Respondent. ORDER [Order per : Akil Kureshi, J. (Oral)]. - Petitioner has challenged an order dated 23/24-1-2018 passed by the Adjudicating Authority, rejecting the petitioner s request for cross-examination of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a serious error in not granting cross-examination of witnesses. At an interim stage, when the adjudication is still going on, we would be loth to interfere. However, when fundamental flaw of breach of basic principles of natural justice is cited, we are left with no choice but to examine the issue further. 4. As noted, the grounds for refusal of cross-examination of witnesses mainly were that the same is not a matter of right, that the statements were not retracted, that they were voluntarily made and are supported by documentary evidences and were also allowed to be perused by the partner of the firm. 5. We are prepared to proceed on the basis that the right of cross-examination may not be inviolable or indefeasible right in the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so allowed, is simply not germane to the question of granting or not granting cross examination. The adjudicating authority entered into an arena of presumption while refusing such request on such ground. II. In case of CCE, Ahmedabad-II v. Gujarat Cypromet Ltd. reported in 2017 (345) E.L.T. 520 (Guj.), Division Bench of this Court, held and observed as under : 9. Merely because the statements, according to the adjudicating officer, were recorded without threat, duress or coercion or that the witnesses at no stage retracted their statements, cannot be a ground for rejecting the request for cross-examination. III. In case of CCE Cus v. Chandan Tubes Metals Pvt. Ltd. reported in 2012 SCC Guj 4917, Division Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Union of India reported in 2016 (334) E.L.T. 302 (Guj.), Division Bench of this Court, observed as under : 19. On a conspectus of the above decisions, it clearly emerges that cross-examination is an integral part and parcel of the principles of natural justice. In State of U.P. v. Mohd. Nooh, AIR 1958 SCR 86, the Supreme Court after referring to various authorities in this regard, has held that if an inferior court or Tribunal at first instance acts wholly without jurisdiction or patently in excess of jurisdiction, or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice, and all accepted rules or procedure and which offends the superior Court s sense of fair play, the superi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of fundamental principles of judicial procedure falls within the exceptions noticed by the Supreme Court in the above decision, wherein the availability of an alternative remedy will not act as a bar in exercising writ jurisdiction under Article 226 of the Constitution of India. V. In case of Andaman Timber Industries v. CCE, Kolkata-II reported in (2016) 15 SCC 785 = 2015 (324) E.L.T. 641 (Tribunal), the Supreme Court, observed as under : 6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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