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TMI Blog2019 (5) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... l of an appellate forum, in the event, the findings of the Additional Commissioner are affirmed. As a consequence, the impugned order is set aside, as against the petitioners. The Additional Commissioner of Customs shall proceed to hear the petitioners and also grant appropriate and sufficient opportunity to cross-examine the witnesses, whose cross-examination was sought but denied in the original proceedings - Petition allowed by way of remand. - W.P.(C) 4131/2019, W.P.(C) 4132/2019, W.P.(C) 4151/2019 - - - Dated:- 23-4-2019 - MR. S. RAVINDRA BHAT AND MR. PRATEEK JALAN JJ. Petitioner Through: Mr. Prem Ranjan Kumar, Adv. in W.P.(C) 4131/2019 4151/2019. Mr. Amor Nath Tiwari, Adv. In W.P.(C) 4132/2019. Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Alternatively, it is suggested that the Court should not take any steps towards setting aside the impugned order, but rather relegate the petitioner to their right of appeal. Such a right might give them a chance to examine the witnesses. 3. The relevant portion in the Order-in-Original, where the Adjudicating Officer denied the petitioners request for cross-examination is extracted below:- 37. Before examining the charges leveled in the impugned show cause notice on merits, I note that Shri Ashok Kumar Yogi (Noticee No.3), Shri Kishore Aggarwal (Noticee No.5) and Shri. Kishan Kumar Aggarwal (Noticee No. 6) have sought for cross-examination of each other as well as all other persons including Shri Sukhvinder Singh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, there has been no such breach. In the show cause notice issued on August, 21, 1961, all the materials on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons, from whom enquiries were alleged to have been made by the authorities, should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this, the persons who have given information should be examined in the presence of appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly, we hold that there is no force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of other co-noticees. The decision of the Hon ble Apex Court in Kanungo Co. was followed by the Calcutta High Court in Tapan Kumar Biswas Vs. Union of India reported as 1996 (63) ECR-546 (Calcutta) in paragraph 17 of the judgment and it was held that in a proceeding under the Customs Act the proceedees are not entitled to cross-examine the witnesses. The decision in Ashutosh Ghosh and Another V. Union of India and Others reported in 1977 Criminal Law Journal N.O.C. 67, was also relied upon and it was observed in paragraph 20 of the judgment that the Supreme Court in Ashutosh Ghosh s case has categorically held that a proceedee is not entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Police officers. Similarly the Hon ble Supreme Court in the case of Naresh J Sukhawani Vs Union of India [1996(83) ELT 258] has held that statement made before the Customs Officials is not a statement under Section 161 of Cr.P.C. Therefore, it is a material piece of evidence collected by the customs officials under section 108 of the Customs Act, 1962, and it can be used as substantive evidence connecting the petitioners with the contravention of the Customs Act. Therefore, the admittal statements of the persons/witnesses as relied upon in the impugned show cause notice, have the evidentiary value in view of the above settled laws of the Hon ble Apex Court. 4. In addition, the Order-in-Original relied upon the Bench rulin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that it would not be appropriate to relegate the appellant to the remedy of cross-examination in the course of an appeal, which would in effect amount to denial of an appellate forum, in the event, the findings of the Additional Commissioner are affirmed. As a consequence, the impugned order dated 07.02.2019 [O-I.O.No.45/2019/K.R.Madhar/ADC/EXP/ICD/TKD] is set aside, as against the petitioners. The Additional Commissioner of Customs shall proceed to hear the petitioners and also grant appropriate and sufficient opportunity to cross-examine the witnesses, whose cross-examination was sought but denied in the original proceedings, which culminated in the impugned original order. The parties shall be present before the Additional C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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