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TMI Blog2024 (5) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise, as the case may be, may order for the retention of such books of accounts or documents, for reasons to be recorded in writing and the Central Excise Officer shall intimate to the assessee or such person about such retention. This court is of the considered opinion that, besides the certified copies of relied documents which goes without saying are necessary for filing reply and preparing defence, the petitioner is entitled to receive original copies of non-relied documents so as to enable him to prepare his defence/reply as fair hearing requires that petitioner is given due opportunity to raise all defences which are available to him under the law on the basis of the documents, facts, circumstances and the legal provisions as the petitioner deems appropriate. Right of petitioner to conduct cross-examination of witnesses whose evidence has been relied upon in the SCNs during adjudication proceedings - HELD THAT:- This court is of the considered opinion that right of fair hearing and personal hearing requires that the petitioner be given right to cross examine witnesses whose evidence has been relied upon in the show cause notices dated 08.06.2022 and 03.08.2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 03.08.2022 to the Petitioner; (v) Issue an appropriate writ/ orders/ directions in the nature of Mandamus directing the Respondents to provide personal hearing to the Petitioner upon release/ provision of the original copy of documents seized by the Respondent from the premises of the Petitioner during various searches conducted and not relied upon in the show cause notices dated 08.06.2022 and 03.08.2022 to the Petitioner; (vi) Pass any such orders which this court may deem fit and proper under the facts and circumstances of the matter." 2. Learned Counsel for the petitioner has submitted that Respondent No. 2 issued show cause notices bearing No. 25/DGGI/ RUI/ADD/GST/ 2022-2023 dated 08.06.2022 and 50/DGGI/ RUI/ADG/C.Ex./ 2022-2023 dated 03.08.2022 to petitioner respectively whereby a total demand of GST and Cess Rs. 19,462,273,010/- (Rupees Nineteen Hundred Forty-Six Crores Twenty-Two Lakhs Seventy Three Thousand and Ten Only) comprising of CGST of Rs. 75,82,19,416/-, SGST of Rs. 75,82,19,416/- and Cess of Rs. 1794,58,34,178/- has been issued against the Petitioner Company and other persons under the false pretext of clandestine supply of filter cigarettes by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has submitted that he has no objection if original non-relied documents are ordered to be returned to the petitioner and they are ready to supply the original non-relied documents which are available with the Respondent as per the list of documents enumerated in Seizure Memos which are non-relied in show cause notices dated 08.06.2022 and 03.08.2022. It has been argued by learned counsel for the Respondents that so far as the right to cross-examine is concerned, the said right is to be exercised by filing appropriate application seeking right to cross-examine before the adjudicating authority, and this is not the forum to seek directions in the nature as prayed for. 5. Heard learned Counsel for the parties and perused the record. 6. It is apparent from bare perusal of Section 67 (3) of the CGST Act and Rule 27 of the Central Excise Rules 2017 that it is the duty of Respondent to release the non-relied upon documents within a period of 30 (thirty) days from the issuance of the show cause notice. Section 67 (3) of the CGST Act and Rule 27 of the Central Excise Rules 2017 reads as hereunder: "Section 67 (3)- The documents, books or things referred to in sub-section (2) or any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng adjudication proceedings is concerned, this court is of the considered opinion that right of fair hearing and personal hearing requires that the petitioner be given right to cross examine witnesses whose evidence has been relied upon in the show cause notices dated 08.06.2022 and 03.08.2022 and it is expected from the adjudicating authority that the said right to cross-examine would be afforded to the petitioner at appropriate stage of proceedings, as principles of natural justice are required to be adhered to while conducting adjudication proceedings. At this juncture, fruitful reference can be made to judgment of Hon'ble Apex Court in Andaman Timber Industries Vs Commissioner of Central Excise 2016 (15) SCC 785 in which it has been held as hereunder:- "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 in as much 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 base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order as passed by the Tribunal and allow this appeal." (Emphasis Supplied) 11. Resultantly, in view of the foregoing discussion, this petition deserves to be allowed and is hereby allowed. As a consequence, we deem it appropriate to direct the Respondents to handover all the original documents to petitioner which have been seized by them and not relied on by Respondents while issuing Show Cause notices dated 08.06.2022 and 03.08.2022, so that the petitioner is enabled in submitting his reply. It is further directed that upon receipt of original documents by Petitioner, the petitioner shall submit his reply within a period of 30 days and the Respondents shall adjudicate the case of the petitioner on its own merits after receipt of reply by affording due opportunity of hearing to the petitioner. Needless to state that petitioner shall have the right to cross examine witnesses whose evidence has been relied upon in the show cause notices dated 08.06.2022 and 03.08.2022 at appropriate stage in adjudication proceedings and the petitioner shall be at liberty to move appropriate application at appropriate stage for exercising the said right, in the course of being afforded per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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