Superintendent's communication fixing hearing date becomes appealable order under section 129A when cross-examination request remains undecided

CESTAT New Delhi held that a communication from Superintendent fixing personal hearing date constitutes an appealable order under section 129A when adjudicating authority fails to decide cross-examination request. The Tribunal found that Commissioner improperly relied on DRI's views without independently considering appellant's cross-examination application. The communication dated 25-09-2023 was set aside, directing Commissioner to independently decide cross-examination request with reasons before proceeding with personal hearing. Appeal allowed.

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Issues Involved:
The issues involved in this case are:
i) Whether the impugned communication addressed by the Superintendent (Adjn.) would be considered as an 'order' for filing of appeal before the Tribunal, in terms of section 129A of the Customs Act, 1962Rs.
ii) Without disposing the request application made by the appellant for cross examining the witnesses, whether the adjudicating authority can proceed to decide the SCN by granting the date of personal hearing to the appellantRs.

Issue (i) - Impugned Communication as an 'Order':
The Appellate Tribunal considered whether the impugned communication dated 25.09.2023, conveying the date of personal hearing fixed before the adjudicating authority, should be deemed as an 'order' for filing an appeal before the Tribunal u/s 129A of the Customs Act, 1962. The Tribunal referenced a similar case where it was held that a communication denying cross-examination can be considered a significant decision for appeal purposes. In this case, the Commissioner neither accepted nor denied the request for cross-examination, merely forwarding the views of DRI. The Tribunal concluded that the appellant correctly filed the appeal against the impugned communication.

Issue (ii) - Cross-Examination Request and Personal Hearing:
The Tribunal examined whether the adjudicating authority can fix a personal hearing without deciding on the appellant's request for cross-examination. It was noted that the adjudicating authority did not independently decide on the request but merely forwarded DRI's views. The Tribunal emphasized the importance of the adjudicating authority making an independent decision on cross-examination before proceeding with the personal hearing. Citing a Supreme Court case, the Tribunal emphasized the necessity of allowing cross-examination for a fair adjudication process.

In conclusion, the Tribunal allowed the appeal, setting aside the impugned communication and directing the Commissioner to independently decide on the request for cross-examination and communicate it to the appellant before proceeding further.

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