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TMI Blog2023 (2) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... E THE CHIEF JUSTICE (DESIGNATE) MS. JUSTICE SONIA GOKANI) 1. The petitioners are before this Court challenging the ex-parte Order-in-Original No. AHM-EXCUS-003-COM-027- 28.02.2021 dated 04.09.2020 passed by the Commissioner Central GST and Central Excise, Gandhinagar Commissionerate, Ahmedabad allegedly in gross violation of principles of natural justice without hearing the petitioners or its authorized representatives. 2. The brief facts leading to the present petition are as follows: 2.1 One of the petitioners - M/s Gyscoal Limited, is a company incorporated under Companies Act., for manufacture their final goods i.e. products of stainless Steel falling under Ch. 72 of CETA, the other petitioner i.e. Viral Shah is the Director of Gysc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provided without relied upon documents which were submitted upon the request by petitioner/s. Subsequently, the hearing was granted on 27.01.2020, 10.03.2020 (public holiday), 19.03.2020, 17.04.2020, 05.08.2020, 11.08.2020, 20.08.2020, which were physical hearing and during nationwide lockdown. The petitioners have replied their show cause notices prior to 11.08.2020. They have filed application for cross examination which are received by the respondent as per their affidavit in reply. 2.6 Except main noticee - M/s Gyscoal Alloys Ltd., an opportunity of hearing was not granted on 20.08.2020, whereas main noticees, as per the record of hearing in impugned order, was heard. Further, main noticee has drawn attention to the fact on record th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them." 2.8 In the above premise the petitioners have sought following prayers: "(A) That Your Lordships may be pleased call for records and proceedings from Respondent No. 2, T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d." 3. Two issues that require consideration are non-availment of an opportunity of cross-examination of the witnesses and also non-grant of personal hearing as provided under the statute. 4. This Court also, at the time of issuance of notice, had referred to not granting of cross examination and pointed out that such action is violative of principles of natural justice. After hearing of petitioners, it is found that effective personal hearing was also not granted and therefore there is a complete denial of natural justice. 5. Record of personal hearing : The adjudicating authority must maintain a record of personal hearing and written submission made during the personal hearing. Evidence of personal hearing and written submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that 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 concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary and the decision of the Apex Court is sufficient enough to bring to the fore the requirement of permitting the cross examination of witnesses whose statements are sought to be relied upon by the authorities. 9. In view of the above, we are of the opinion that the order impugned passed by the authority concerned deserves to be quashed and set aside. 10.1 Accordingly, we allow all these petitions, quashing and setting aside the impugned order passed by the authority concerned in all these petitions, remitting the matters to the stage where it was left for the authority concerned to avail an opportunity within two weeks from the date of receipt of copy of this order through e-mail to respective advocates as also through R.P.A.D. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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