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TMI Blog2005 (10) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the samples of the product of the petitioners known as "'CHOCOS" were analysed by the Deputy Chief Chemist, Central Excise, Mumbai; whose test reports dated 10th March, 1996 and 19th March, 1996 revealed amongst others that the content of 'cocoa' therein exceeded the minimum limit of 6% as stipulated in Note No. 2 of Chapter 19 of the Tariff Act. This led the Central Excise Department/the respondents to form a prima facie; opinion that the subject product needed to be classified under Chapter sub-heading No. 1084.00 and not under Chapter sub-heading No. 1904.10 as sought to be classified by petitioner No. 1. 5. A show cause notice was issued to the petitioners calling upon them to show cause as to why their product 'CHOCOS' should not be classified under Chapter sub-heading No. 1084.00 of the Tariff Act and, the classification declaration filed under Rule 173B of the Central Excise Rules, 1944 by them during the financial year 1996-97 till the date of show cause notice be not accepted accordingly. 6. The petitioners submitted their reply vide letter dated 6th January, 2000; wherein they challenged the test reports of the Deputy Chief Chemist stating tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Deputy Chief Chemist. In fact that CFTR, the premier food research institution of the Government suggests that it was unable to directly determine the cocoa content emphasizes the need that the appellant was asking for this information. 6. We are therefore of the view that the appellant should be indicated the methodology by which the Deputy Chief Chemist concluded the cocoa content to be excess of 6%. After this is communicated to the appellant, if it desires to cross-examine the Deputy Chief Chemist, that should also be permitted after doing sop and going the appellant and the department an opportunity to produce evidence, the classification should be decided afresh. 7. Accordingly, we allow the appeal, set aside the impugned order and remand the matter to the Deputy Commissioner for passing appropriate orders in accordance with law." (Emphasis supplied) 11. Pursuant to the Tribunal's order, in second round of proceeding, the photo-stat copies of some of the pages of the book known as "The Chemical Analysis of Foods", by David Pearson, 7th Edition were supplied to the petitioners vide letter dated 16th March, 2005. The petitioners, not being satisfied with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Solicitor General appearing for the respondents during the course of hearing, reluctantly, handed over the copies of the test reports. Mr. Hidayatulla, with the receipt of the copies of the test reports, sought time to go through the same; to find out whether or not that would meet the requirement of the petitioners. Consequently, petition was adjourned from time to time by consent of parties hoping that the dispute will go back to the adjudicating authority for de novo consideration. That is how, today, this petition has come up for further hearing before us. 17. Mr. Desai, learned Additional Solicitor General, today, took a very strange stand and insisted for hearing and prayed for dismissal of this petition on his submissions, reference of which is made in the subsequent paras of this judgment. That is how, we were compelled to decide this petition dealing with the rival contentions, which could have been avoided had the things been seen in its proper perspective by the Revenue. Rival Contentions : 18. Mr. B.A. Desai, learned Additional Solicitor General by way of preliminary objection submitted that this petition should not be entertained under Article 226 of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural justice. 23. Mr. Hidayatullah further urged that the rule of exclusion of writ jurisdiction, in view of availability of appellate remedy, is a rule of discretion and not one of compulsion. He submits that failure on the part of the respondents to follow principles of natural justice is sufficient to enable this Court to adjudicate upon this writ petition in spite of availability of alternate remedy. In the case where this Court finds that the facts of the case demand adjudication of the grievance of the party under Article 226, the petition cannot be thrown out of Court. 24. Mr. Hidayatullah, relying on Paras 5 and 6 of the order of the Tribunal (reproduced hereinabove), submits that the Tribunal was also convinced of the fact that the petitioner-manufacturer was entitled to be told the methodology of the analysis employed by the respondents to conclude that the product of the petitioners conforms to the composition on the basis of which classification was proposed. 25. Mr. Hidayatullah submits that the Tribunal had agreed and recorded a positive finding that though the reply to the show-cause-notice did not specifically disclose demand for methodology of analysis but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners' right to effectively cross-examine the witness has resulted in breach of principles of natural justice. He submits that no useful purpose would have been served by proceeding with the cross-examination of the Deputy Chief Chemist in the absence of material particulars with respect to the methodology of analysis employed and the material particulars of the test reports. He, thus, submits that the adjudicating authority has neither followed direction of the Tribunal contained in the remand order nor did it follow the principles of natural justice, which were necessary considering the heavy stakes of the petitioners involved in the matter. In this view of this, he submits that no useful purpose would be served by driving the petitioners to an alternate remedy, especially, when the flagrant breach of principles of natural justice is apparent on the face of record. 28. Mr. Hidayatullah further submits that looking to the huge pendency of the matters in the Tribunal, no priority would be given to the matters like in question. The matter would remain pending for years together and during this period possibility of issuance of spate of show cause notices by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 954 SC 207; Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India v. T.R. Verma, AIR 1957 SC 882; State of U.P. v. Mohammad Nooh, AIR 1958 SC 86; and M/s. K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR 1966 SC 1089, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. 34. The another Constitution Bench of the Apex Court in State of Madhya Pradesh and Another v. Bhailal Bhai etc. etc., AIR 1964 SC 1006, held that remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39. In order to appreciate the rival submissions, one has to turn to Paras 5 and 6 of the order passed by the Tribunal which is already quoted in Para 10 (supra). 40. After remand by the Tribunal, photo-stat copies of four pages of one book referred to above and methodology adopted for carrying out test were supplied by the respondents to the petitioners. Those four pages contained four methods of carrying out the test to find out cocoa content of the subject product, which, undisputedly, led to a question as which method was adopted by the Deputy Chief Chemist to arrive at percentage of cocoa content. 41. In order to unlock the said question the petitioners thought it fit to ask for the test report which they had been insisting right from the stage of commencement of adjudication process up to the stage of Tribunal. As a matter of fact, the order of the Tribunal is pregnant with direction to disclose this aspect of the matter. The Tribunal when issued direction vide its order dated 16th May, 2001, was not very much aware of the fact that more than one methods are available and any one of them could be employed to find out cocoa content. Had the Tribunal been alive to this issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tnesses called by others. Where an oral hearing is necessary, it has been laid down in number of reported judgments that the Tribunal must : (a) consider all relevant evidence which a party wishes to submit; (b) inform every party of all the evidence to be taken into account, whether derived from another party or independently; (c) allow witnesses to be questioned; and (d) allow to comment on the evidence and argument on the whole case. The last two rights include right of cross-examination. 45. The opportunity to cross-examine involves not only notice of the adverse material but also a sufficient interval of time to prepare for cross-examination. The notice of the adverse material and opportunity of cross-examination is necessary because wherever the opponent has declined to avail himself of the offered opportunity, it must be supposed to have been because he believed that testimony could not or need not be disputed at all or be shaken by cross-examination. In this view of the matter, right to cross-examine or to have opportunity to effectively exercise that right is an essential part of principles of natural justice. [See 2002 (143) E.L.T. 21 (S.C.); 2001 (136) E.L.T. 9 (Bom.); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on rejected the application for review. The contents of the State Government's report were not made known to the firm, nor was any reasonable opportunity given to the firm for presenting their case. It was contended before the Apex Court that the Central Government was acting as a quasi-judicial authority and the order which was passed taking into consideration the report of the State Government and without their knowing the contents of the report and without affording them a reasonable opportunity of presenting their case was contrary to the principles of natural justice and, therefore, void. The Apex Court upheld this submission and ruled that the Central Government could not act on the basis of the material as regards which the appellants had no opportunity to make their representation. 51. In our view, the above principle would apply even where the petitioner has been denied opportunity to have the contents of the test reports relied upon by the respondents before the adjudicating authority. In our view, the adjudicating authority was, obviously, in error in not directing the respondents to supply copies of the test reports to the petitioners. A document to be relevant may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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