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TMI Blog2017 (11) TMI 2011X X X X Extracts X X X X X X X X Extracts X X X X ..... esses whose cross-examination the petitioners wanted but the adjudicating denied. That being the position, it was necessary that the petitioners be allowed cross-examination of such witnesses at least on sample basis. It is not possible for us to segregate the nature of evidence on record and come to the conclusion that even in absence of the statements of these witnesses, the findings of the adjudicating authority can be salvaged. The adjudicating authority not having undertaken any such exercise it would neither be possible nor appropriate on our part to do so. The impugned orders are vitiated on the ground of cross-examination of witnesses not being allowed though applied for and that adjudicating authority relying upon the statements of such witnesses in the final order of adjudication - Only on the ground of not permitting cross-examination of the members of panel, in the opinion of the Court, did not vitiate the order of confiscation against the petitioner. Proceedings are remanded to the adjudicating authority for fresh consideration and disposal in accordance with law - petition allowed by way of remand. - SPECIAL CIVIL APPLICATION NO. 1885 of 2017 With SPECIAL CIVI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nculpatory statements have been withdrawn by the deponents. Even independent persons, whose statements were recorded and sought to be relied upon, have retracted their statements at the first available opportunity. The petitioner, therefore, in paragraph 57 of the reply stated as under:- We request for Speaking Order after allowing Examination/ Cross-Examination of concerned Persons as listed out in the separate list attached h/w and Prayed for and and after giving us appropriate opportunity of Personal Hearing. 4. In paragraph 58, it was a prayer clause. The petitioner had prayed for (i) grant of personal hearing, (ii) to allow examination/cross-examination of such persons including those mentioned in the list, (iii) to permit the petitioner to adduce further evidence and (iv) to quash the show cause notice. Thus, reply contained an annexure giving names of various persons whose statements were referred to and relied upon in the show cause notice, whose cross-examination the petitioner desired. 5. It is undisputed that the adjudicating authority passed no separate order on this prayers of the petitioner. In other words, the petitioner's prayers for permitting cross- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners had never asked for cross-examination of the investigating officers and reference to this request in the impugned order is, therefore, erroneous. Counsel lastly clarified that the petitioners would be satisfied if cross-examination of sample witnesses and not of all of them is permitted. 7. In support of his contentions, counsel relied on following decisions. (i) Commissioner of Central Excise, Ahmedabad-II v. Gujarat Cypromet Ltd., 2017 (345) ELT 520 (Guj.) (ii) Manek Chemicals Pvt. Ltd. v. Union of India,2016 (334) ELT 302 (Guj.) (iii) Andaman Timber Industries v. Commissioner of Central Excise, Kolkata-II, 2015 (324) ELT 641 (SC) (iv) Judgment in the case of Swagat Synthetics and Others v. Union of India dated 2011.2017 passed by this Court in Special Civil Application No.9510 of 2017. 8. On the other hand, learned advocate Shri Lodha for the department opposed the petitions. He contended that the petitioners do not show relevance why cross-examination of the witnesses was necessary. In any case, no prejudice has been caused by not granting such cross-examination. The adjudicating authority has relied on the statements of the witnesses only for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f adjudication invalid. In this context, as noted, even counsel for the department could not build a case that the adjudicating authority had placed no reliance on the statements of the witnesses whose cross-examination the petitioners wanted but the adjudicating denied. That being the position, it was necessary that the petitioners be allowed cross-examination of such witnesses at least on sample basis. It is not possible for us to segregate the nature of evidence on record and come to the conclusion that even in absence of the statements of these witnesses, the findings of the adjudicating authority can be salvaged. The adjudicating authority not having undertaken any such exercise it would neither be possible nor appropriate on our part to do so. 11. In case of Manek Chemicals (supra), Division Bench of this Court, after referring to various judgments of High Courts and the Supreme Court held that there was serious breach of principles of natural justice in the adjudication proceedings since cross-examination of important witnesses was not granted. 12. In case of Gujarat Cypromet Limited (supra), Division Bench of this Court observed as under:- 7. In the case of Telest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l grant cross-examination of those witnesses whose statements he proposed to rely upon before passing fresh order. 14. In case of Andaman Timber Industries (supra), 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 of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concern ..... 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