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TMI Blog2021 (12) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... department when it disputes that basic proposition that the statements of prosecution witnesses which have not been relied upon and if the request comes forth for those witnesses to be examined as the defence witnesses, the same shall need to be allowed, subject to statutory provision of Section 128 as it is always to be left to the parties concerned in adjudicatory process as to whom they need to be brought as the defence witnesses. Here some of the witnesses are those whose statements were recorded before the show cause notice had been issued and for the reasons suited best to the respondents, quite a few of them were not included in the show cause notice. It would be always the right of the party against whom the show cause notice is issued to call them as defence witnesses as it is the right given to the party which faces the adjudication proceedings. The Court needed to take a note of the fact that the order-in-original came to be passed despite the specific assurance given by the then learned Standing Counsel. It is also reflected in the order-in-original. We had directed the affidavit to be filed however, that has not come on record. We have chosen not to stretch this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide Letter 28.08.2019 issued in F.No. order/letter dated 28.08.2019 (Annexure-A), and be further pleased to direct respondent no.2, to allow the petitioners to cross examine the persons whose statements are taken but not relied upon in the Show Cause Notice; (C) That Your Lordships may be pleased to issue a writ of prohibition or any other appropriate writ, direction or order, completely and permanently prohibiting the 2nd respondent herein from conducting and concluding adjudication proceedings of Show Cause Notice No. V. CH.72(04)/RSL/PREV/ADJ/COMMR/03/2017-18 dated 08.05.2017 (Annexure-B) without allowing cross examination of defence witnesses requested for by the petitioners vide letter dated 23.07.2018 (Annexure-C collectively); (D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Commissioner of Customs, Ahmedabad, the 2nd respondent herein, from proceeding ahead with the adjudication of Show Cause Notice V. Ch. 72(04)/RSL/PREV/ADJ/COMMR/03/2017-18 dated 08.05.2017 (Annexure-B); (DA) Pending the hearing and final disposal of the petition, Your Lordships may be pleased to restrain Respondents, its age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cross-examination of the deponents whose statements have been recorded and relied upon in the show cause notice be permitted. It has further urged that the application be heard before the adjudication of the show cause notice and appropriate order be passed, for which, reliance is placed on the decision of this Court in case of Mahek Glazes Pvt.Ltd. vs. Union Of India, reported in 2014 (300) E.L.T. 25(Guj.). Along with this Annexure-A which consists of the list of the persons whose statements had been recorded before issuance of the show cause notice and whose cross-examination had been requested also has been annexed. 3.5. It appears that the Commissioner of Central Goods and Service Tax, Vadodara-II passed the order impugned on 28.08.2019 by his brief order where he rejected the request on the ground that it is untenable. He also further mentioned that the judgment relied upon by the applicant has been examined as found to be not relevant to the present case. It is further his say that all the non-relied upon statements have already been supplied to the applicant and there is no genuine reason for asking for cross examination of the persons whose statements have not been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken us through the decisions, the provisions as also the order impugned to urge that no interference is desirable. According to him, the order impugned is passed in accordance with law. He, however, has acted with extreme fairness so far as the order-in-original which has been passed on 29.10.2020 by urging the Court to pass necessary order in that respect without defending the act of either learned Standing Counsel who was engaged in this matter before he was handed over the brief or of the officer who passed the order. 6. Firstly attending to the decision of M.S.Naina vs Collector of Customs, West Bengal, Calcutta-I (supra), it was a case where the petitioner in his application had prayed for the disclosure of the forensic test report which was directed in course of the adjudication proceedings and secondly, he wanted the summons on a defence witness as he wanted to examine the witness proposed to be summoned as according to him, the evidence of such witness was necessary for his defence. The Collector did not dispute the proposition that such a witness was necessary witness for the defence. He considered such a prayer but the witness who was to be examined, was a represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r whose signature CRCL report had been forwarded and opportunity of personal hearing in connection with the said report was denied. While confirming the demand, the Court held this denial to be a denial of opportunity and denial of opportunity relatable to the breach of principle of natural justice. (6) The question of maintainability of the petition being a jurisdictional issue is required to be addressed at the outset. In this regard it may be apposite to refer to the decision of this court in Manek Chemicals Pvt. Ltd.v. Union of India, 2016 (334) ELT 302, wherein this court was called upon to decide similar issues as have arisen in the present case. The court held thus: 18. At this juncture, reference may be made to the following decisions: - 18.1 In Lachhman Das, Tobacco Dealers v. Union of India, (supra), the Delhi High Court held thus: - 4. The main attack of the learned Counsel was based on denial of natural justice as discussed in the earlier part of the judgment. In my opinion, denial of an opportunity to examine the Chemical Examiner constitutes such violation of natural justice as will entail the setting aside of the impugned orders. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order itself. Sum total of this discussion is that we are inclined to set aside the impugned order and request the adjudicating authority to pass a separate order on the petitioners application/ request letter for granting cross-examination of the named witnesses. We are conscious that the Commissioner has already decided such an issue, however, since we are quashing the order, this part of the order would also not survive and hence, the requirement of a fresh order. We are informed that the same officer continues to hold the office of the Commissioner of Customs Central Excise, Surat-II. It would therefore, be not necessary to separately hear the petition once again before passing any such order. This would, however, not preclude the Commissioner from requiring the petitioners to show relevance for seeking cross-examination of the witnesses. 18.3 The Supreme Court in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others, (2013) 4 SCC 465, has held thus:- 24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan held that the rules of natural justice require that a party must be given the opportunity to adduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross-examination was provided to him, specially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy and Channabasappa Basappa Happali v. State of Mysore.) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill, this Court held: 9. In order to establish that the cross-examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross-examine any official. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, 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 superior Court may quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or the Tribunal at first instance, even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it. In C.I.T. v. Chhabil Dass Agarwal (supra) on which reliance had been placed by the learned counsel for the respondent, the Supreme Court held thus:- 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds in the communication dated 10.02.2016 stating the reasons as to why it seeks to cross-examine the signatory of the CRCL report. However, the request has fallen on deaf ears. It is settled legal position that the right to cross-examine ought or to have opportunity to effectively exercise that right is an essential part of principles of natural justice. Under the circumstances, the adjudicating authority was required to give fair opportunity to the petitioner to not only deal with the report of the CRCL, which was received subsequently but also to give an opportunity to the petitioner to cross-examine the Director (Revenue Laboratories) in respect of the contents of the report and the inferences drawn therein. Non-grant of opportunity to cross-examine the Director (Revenue Laboratories) in respect of the report on which reliance has been placed by the adjudicating authority, also amounts to breach of principles of natural justice. Insofar as the decision of the Bombay High Court in Patel Engineering Limited v. Union of India (supra) on which reliance has been placed on behalf of the respondents, this court is of the view that the same does not in any manner further the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is for cross-examination of those witnesses whose statements had been recorded and not relied upon in the show cause notice. In that eventuality, if the authority concerned has chosen not to examine them as prosecution witnesses and those who are already relied upon by the Revenue when have already been cross-examined, defence cannot request to cross-examine witnesses whose statements have not been relied upon by the Revenue without examining them as defence witnesses. No interference in that count would be necessary. 11. We noticed that the emphasis before this Court was also on the subsequent submissions made on 06.09.2019 by way of another application by the learned counsel relying on the decision of M.S.Naina (supra) and urging the authority concerned to permit some of these witnesses to be examined as the defence witnesses. The Court cannot be oblivious of the fact that this was subsequent to the passing of the order dated 28.08.2019 and not prior to that. Not only the very basis was lacking, the Court also cannot be oblivious of the fact that after the passing of the order, if any improvisation is being made that cannot be permitted to be change the very edifice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order-in-original came to be passed despite the specific assurance given by the then learned Standing Counsel. It is also reflected in the order-in-original. We had directed the affidavit to be filed however, that has not come on record. We have chosen not to stretch this issue, but, the then learned Standing Counsel was expected to guide the officer concerned dispassionately and as otherwise needed as Court Officer. The order-in-original is passed in complete disregard to the adjournment sought by the respondent and assurance given to the Court even while urgency was made. It would be worthwhile to reproduce the relevant paragraph 25.2 from the order-in-original passed on 29.10.2020: - 25.2. Vide letter dated 11.09.2019 the assessee inter alia informed that they have filed Special Civil Application No. 20429 of 2019 for cross examination with respect to impugned Show Cause Notice. The SCA no. 20429/2019 is pending decision as on date. No stay has been granted by Hon ble H.C. in the present matter. Since there is no stay from Hon ble H.C. of Gujarat, in order to initiate adjudication proceedings, vide this office letter dated 27.05.2020 a legal opinion was sought for from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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