High Court directs Commissioner to decide on witness cross-examination before action

The High Court directed the Commissioner of Central Excise to consider and decide on the petitioner's request to cross-examine remaining witnesses crucial to a show cause notice alleging clandestine removal of cigarettes without payment of central excise duty before proceeding with any action under Section 9D of the Central Excise Act. The Court clarified that its decision did not influence the Commissioner's independent judgment, emphasizing an independent finding in accordance with the law. The petitioner was instructed to be present for the decision, and the petition was disposed of without costs.

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Issues:
- Right of cross-examination of witnesses based on show cause notice alleging clandestine removal of cigarettes without payment of central excise duty.

Analysis:

The petitioner approached the High Court aggrieved by the orders passed by the Commissioner of Central Excise, which were perceived to extinguish its right of cross-examination of witnesses crucial to the show cause notice alleging clandestine removal of cigarettes without payment of central excise duty. The petitioner had previously approached the Court due to non-furnishing of relevant documents by the respondents, hindering its ability to rebut the allegations effectively. The petitioner had cross-examined 7 out of 68 witnesses whose statements were recorded by the Revenue to support the allegations. However, due to the lapse of time, many witnesses were unavailable, either deceased, infirm, or abroad. The petitioner sought to cross-examine the remaining witnesses to counter the accusations effectively.

The petitioner argued that it should be permitted to cross-examine the remaining witnesses before any action under Section 9D of the Central Excise Act is taken. The Revenue contended that the challenge was premature as no decision had been made rejecting the petitioner's reply dated 4.1.2013. The Court, after hearing both parties, decided that intervention under Article 226 of the Constitution was not warranted at that stage. The Court directed the Commissioner of Central Excise to consider and decide on the petitioner's request before proceeding with the show cause notice and action under Section 9D of the Act.

The Court instructed the petitioner to be present through its authorized representative before the Commissioner of Central Excise on a specified date for a decision on the issue. It was clarified that the Court had not made any observations on the merits of the case, leaving it to the Commissioner to arrive at an independent finding in accordance with the law. The Court emphasized that the decision was not to influence the Commissioner's independent judgment. The petition was disposed of with no costs involved.

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