2022 (2) TMI 894 - AT - Central Excise

Tribunal overturns order for lack of cross-examination, stresses procedural fairness

Shiv Shakti Watch Case, Rajesh Thakur, Khurana Traders, Bhatia General Store, AM Traders, Srichand Wadhwa Versus C.C.E. & S.T. -Rajkot

The Tribunal set aside the impugned order due to the denial of cross-examination, ruling it violated the Principles of Natural Justice. The case was ... Clandestine removal - clubbing of number of various units - demand mainly based on various documents and statements of various persons recorded under Section 14 of the Central Excise Act, 1944 - cross-examination of statements or not - HELD THAT:- The appellant have made a categorical request vide their letter dated 4.8.2008 wherein, they have requested for cross examining 17 persons whose statements were relied upon. As mandated under Section 39 of Central Excise Act, 1944, it is mandatory on the part of the Commissioner that to rely upon any statement, the witness has to be examined. In this case particularly, when the appellant have made a request for cross examining, he has no reason to deny cross examination before deciding the case. This issue has been consistently held in the various judgments as cited by the appellant that statements can be relied upon only after cross examining the witness who has given the statement. The learned Commissioner by rejecting the request for cross examination of the witness has violated the Principles of Natural Justice - Appeal allowed by way of remand. Issues involved:Clandestine removal and clubbing of various units, denial of cross-examination of witnesses, violation of Principles of Natural Justice.Analysis:The appeals before the Appellate Tribunal arose from a common Order-In-Appeal where the Order-In-Original was upheld, focusing on the issue of clandestine removal and clubbing of different units. The Adjudicating Authority had confirmed the demand based on documents and statements recorded under Section 14 of the Central Excise Act, 1944.The appellant's counsel requested cross-examination of witnesses whose statements were pivotal for the Order-In-Original, but this request was denied during the personal hearing. The counsel argued that cross-examination is essential when relying on statements of individuals. Citing various judgments, the counsel emphasized the necessity of cross-examination for a fair decision-making process.On the contrary, the Authorized Representative for the revenue contended that the case was not solely based on statements but also on various documents, justifying the Commissioner's rejection of the cross-examination request. The representative supported the findings of the impugned order.After careful consideration, the Tribunal decided that the case could be resolved on the preliminary issue of whether cross-examination should have been permitted. Emphasizing the mandatory nature of cross-examination under Section 39 of the Central Excise Act, 1944, the Tribunal concluded that the Commissioner erred in denying the cross-examination request. Referring to previous judgments, the Tribunal highlighted the consistent requirement for cross-examination before relying on statements.Consequently, the Tribunal found that the denial of cross-examination violated the Principles of Natural Justice. Therefore, the impugned order was set aside, and the matter was remanded to the Adjudicating authority for a fresh decision, ensuring the right to cross-examine witnesses is respected.This judgment underscores the significance of adhering to procedural fairness, particularly regarding the right to cross-examine witnesses in legal proceedings, as a fundamental aspect of upholding the Principles of Natural Justice.