Court dismisses writ petition, upholds denial of cross-examination, emphasizes tribunal remedy

The Court held that the writ petition challenging an Order-in-Appeal was not maintainable as the respondent bypassed the statutory appellate remedy by not filing an appeal before the Tribunal within the prescribed time. The Court upheld the denial of cross-examination of witnesses, finding it unnecessary and a delay tactic. It emphasized the efficacy of the Tribunal as an alternate remedy and set aside the writ petition's order, allowing the respondent to appeal to the Tribunal on other grounds within an extended limitation period.

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Issues Involved:
1. Maintainability of the writ petition.
2. Denial of cross-examination of witnesses.
3. Availability and efficacy of alternate remedy.

Detailed Analysis:

1. Maintainability of the Writ Petition:
The respondent filed a writ petition challenging the Order-in-Appeal dated 29.09.2016 and sought a direction for fresh adjudication after permitting cross-examination of certain witnesses. The appellants argued that the writ petition was not maintainable as the respondent had an alternate remedy of filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal). The Court noted that the appeal to the Tribunal should have been filed within three months from the date of communication of the order, which was 20.10.2016. Therefore, the appeal should have been filed by 19.01.2017. The respondent, however, filed the writ petition on 27.02.2017, bypassing the statutory appellate remedy. The Court emphasized that the Tribunal is the last authority to give a conclusive finding on facts and that the writ petition should not have been entertained, especially when the statutory period for filing an appeal had lapsed.

2. Denial of Cross-Examination of Witnesses:
The respondent's request for cross-examination of three witnesses was a central issue. The second appellant had denied this request, stating that cross-examination is not mandatory, relying on the Supreme Court's decision in Kanungo & Co. vs. Collector of Customs. The respondent argued that cross-examination should have been permitted under Section 138B of the Customs Act, 1962. The Court examined the facts and found that the three witnesses had not retracted their statements given under Section 108 of the Act, which were voluntary and binding. The Court concluded that the request for cross-examination appeared to be a tactic to delay the proceedings. The Court upheld the findings of the adjudicating authority and the first appellant, confirming that there was no violation of natural justice in denying the cross-examination.

3. Availability and Efficacy of Alternate Remedy:
The respondent contended that the remedy before the Tribunal was illusory and not efficacious. The Court rejected this argument, stating that the Tribunal is capable of re-appreciating facts and taking decisions on both facts and law. The Court emphasized that the Tribunal is an effective and efficacious remedy, and the respondent should have availed it. The Court also noted that the writ petition was filed to bypass the statutory appellate remedy, which was not justified.

Conclusion:
The Court allowed the appeal, set aside the order passed in the writ petition, and confirmed the findings of the first and second appellants regarding the denial of cross-examination. The Court left it open for the respondent to prefer an appeal to the Tribunal on other issues, if so advised. The period from 27.02.2017 till the receipt of the certified copy of the judgment was excluded for computing the period of limitation for filing the appeal to the Tribunal.

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