2017 (6) TMI 567 - AT - Central Excise

Unfair Denial of Cross-Examination in Duty Evasion Case

Mahesh Laxinarayan Thanvi, Aafloat Textiles (I) Ltd Versus C.C.E. & S. Tax, Vapi

The case involved an allegation of clandestine removal of goods without payment of duty, supported by forged export proof. The appellants were denied ... Principles of Natural justice - it was found that M/s OM Corporation was not in existence and the goods though claimed to have been exported but in fact, not exported - denial of cross-examination - Held that: - to establish involvement of the manufacturer and others, no doubt, reliance has been placed on documentary evidences but also the statements of witnesses collected during the course of investigation, which had been relied upon by the adjudicating authority in confirming the allegation - Keeping in view the principles laid down in allowing cross-examination of witnesses whose statements were relied in various judicial pronouncements, the appellants be given a fair opportunity to examine these witnesses whose statements have been relied - appeal allowed by way of remand. Issues involved: Allegation of clandestine removal of goods, denial of cross-examination violating principles of natural justice, reliance on documentary evidence and witness statements, remand for cross-examination of witnesses.Allegation of clandestine removal of goods:The case involved the clearance of manufactured goods for export against a Block Transfer Certificate, where it was later discovered that the goods were not actually exported but diverted to the local market. The appellant was alleged to be involved in clandestine removal of goods without payment of duty. The proof of export submitted by the Merchant Exporter was found to be forged, indicating a fraudulent transaction. The adjudicating authority relied on both documentary evidence and statements of witnesses to confirm the allegation.Denial of cross-examination violating principles of natural justice:The appellants raised concerns regarding the denial of their request for cross-examination of key witnesses during the adjudication proceedings. The appellants argued that the denial of cross-examination resulted in a violation of principles of natural justice. Reference was made to the judgment of the Hon'ble Supreme Court in a similar case to support the claim that the right to cross-examine witnesses is essential for a fair adjudication process.Reliance on documentary evidence and witness statements:The Revenue contended that the statements of witnesses might not be crucial as substantial documentary evidence existed to establish the case against the appellants. The documentary evidence indicated that the goods, although cleared for export, were never intended for actual export due to the involvement of a non-existent merchant exporter. The reliance on witness statements, along with documentary evidence, played a significant role in confirming the demand and imposing penalties on the appellants.Remand for cross-examination of witnesses:In light of the arguments presented by the appellants and considering the importance of allowing cross-examination of witnesses whose statements were relied upon, the appeals were remanded to the adjudicating authority. The appellants were granted the opportunity to cross-examine the witnesses, including Premsingh Rajput, Anwarbhai Aminbhai, Mahesh Laxminarayan, and D.K. Kedia. The remand was deemed necessary to ensure a fair and transparent adjudication process, in line with established legal principles. The impugned order was set aside, and the appeals were allowed for remand purposes, granting the appellants the liberty to raise all relevant issues during the process.