2025 (9) TMI 1339 - HC - GST

Adjudication set aside: denying cross-examination of third-party witness statements breached natural justice, matter remitted for rehearing

M/s. JSW Steel Limited Versus The Joint Commissioner Of Central Tax And Central Excise Bangalore, Directorate General Of Gst Intelligence, Delhi Zonal Unit.

The HC set aside the impugned adjudication order and remitted the matter for fresh consideration, holding that denial of the petitioner's request to ... Violation of principles of natural justice - refusal to permit the petitioner to cross-examine the representatives of the L & T whose statement had been recorded by the respondents - evasion of GST by adopting different methods / modus operandi in its day-to-day business - HELD THAT:- The reasoning and findings recorded by the 1st respondent while declining / refusing the request of the petitioner for cross-examination of the L & T representatives are wholly erroneous, unsound and contrary to facts and law inasmuch, as the said statements of the aforesaid L & T representatives have not only been relied upon but also made the basis by the 1st respondent to uphold / confirm the demand of payment of GST made in the show cause notice against the petitioner; it follows therefrom that the said statements of the L & T representatives are not only relevant material and germane for the purpose of adjudication of the issues on controversy between the parties, principles of natural justice as well as equity, justice and fair play would demand / warrant an opportunity to be provided to the petitioner to examine / cross-examine the L & T representatives in relation to their statements recorded by the respondents which were sought to be relied upon by the 1st respondent for the purpose of passing the impugned order. The denial of an opportunity in favour of the petitioner to cross-examine the L & T representatives tantamounts to not only violation of principles of natural justice but also deprival of the valuable right of cross-examination to the petitioner and also contrary to principles of justice, equity and fair play particularly when the said statement of the said L & T representatives were relied upon by the 1st respondent in the impugned order, thereby establishing that denial of an opportunity to cross-examine has caused irretrievable prejudice and hardship to the petitioner and consequently, the impugned order deserves to be set aside and the matter remitted back to the 1st respondent for reconsideration afresh in accordance with law. In Andaman Timber’s case [2015 (10) TMI 442 - SUPREME COURT], the Apex Court held that 'The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guesswork as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them.' In G.Tech Industries case [2016 (6) TMI 957 - PUNJAB & HARYANA HIGH COURT], the Punjab & Haryana Court held 'the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of section 9D(1) of the Act would apply.' In Nishad’s case [2025 (1) TMI 980 - KERALA HIGH COURT] learned Single Judge of the Kerala High Court followed the aforesaid judgments in GST proceedings and held that it was necessary to provide an opportunity in favour of the petitioner wherein cross-examine the persons making alleged statements in order to test their veracity by holding that 'Considering the nature of the order issued against the petitioner which is impugned in this writ petition, this Court is of the view that failure to grant an opportunity to the petitioner for cross-examination and relying upon the statements of persons to impose penalty have violated the principles of natural justice.' The 1st respondent fell in error in declining to provide an opportunity to the petitioner to examine / cross-examine the L & T representatives whose statements had not only been recorded by the respondents during investigation but the same were relevant, material and germane and had been relied upon by the 1st respondent in the impugned order without providing an opportunity to the petitioner to discredit or impeach the veracity of the statement and the credibility of the said L & T representatives thereby resulting in erroneous conclusion. The impugned order passed by the 1st respondent deserves to be set aside and the matter is remitted back to the respondents for reconsideration afresh in accordance with law - Petition allowed by way of remand. ISSUES PRESENTED AND CONSIDERED 1. Whether denial of an opportunity to examine/cross-examine third-party witnesses whose statements were recorded during investigation and relied upon in adjudication proceedings violates principles of natural justice. 2. Whether, in proceedings under the CGST Act (specifically s.74(9) framework), the absence of an express statutory provision for cross-examination precludes reading in the principles of natural justice so as to require opportunity for cross-examination when third-party statements are relied upon. 3. Whether refusal to permit cross-examination can be sustained where the adjudicating authority treats third-party statements as material basis for the adverse order, including whether reliance on precedents concerning confessions or different fact-patterns is appropriate. 4. Whether writ jurisdiction under Article 226 is maintainable to challenge an adjudication order on the ground of violation of natural justice despite availability of an alternative statutory appellate remedy. ISSUE-WISE DETAILED ANALYSIS Issue 1: Violation of natural justice by denying cross-examination when third-party statements are relied upon Legal framework: Principles of natural justice (audi alteram partem and nemo judex in causa sua) apply to quasi-judicial tax/adjudicatory proceedings; reliability and adversarial testing of evidence are core aspects of fair hearing. Statutory adjudication under s.74(9) involves notice, representation and final order; evidence relied upon must be open to testing if it forms the basis of an adverse finding. Precedent treatment: High Court and Supreme Court authorities (as examined in the judgment) establish that where statements recorded during investigation are made the basis of adjudication, denial of cross-examination is a serious flaw; orders premised on such untested statements have been set aside. Authorities that upheld denial of cross-examination in contexts of clear confessions or materially distinguishable facts are recognized but treated as limited in application. Interpretation and reasoning: The Court held that when the adjudicating authority not only records third-party statements but expressly relies upon them to reject the assessee's contentions and confirm demand, fairness requires permitting examination/cross-examination of the makers of those statements. The authority cannot predetermine that cross-examination would be futile or produce no new material; such presupposition is impermissible. The right to challenge veracity and credibility of relied-upon statements is integral to an effective representation and to procedural fairness. Ratio vs. Obiter: Ratio - Denial of opportunity to cross-examine third-party witnesses whose statements are relied upon in adjudication proceedings violates principles of natural justice and renders the impugned order susceptible to being set aside. Obiter - Observations distinguishing cases involving confessions or other special circumstances which may justify denial of cross-examination. Conclusion: The denial of cross-examination in the facts at hand (statements of third parties relied upon as material basis for order) violated natural justice and caused prejudice; the impugned order must be set aside and remit for fresh adjudication with opportunity for cross-examination. Issue 2: Applicability of principles of natural justice despite absence of express statutory provision for cross-examination under CGST scheme Legal framework: Statutory scheme prescribes notice and opportunity for representation; absence of an express provision for cross-examination does not ipso facto exclude the principles of natural justice. Constitutional and judicial precedents require that natural justice be read into quasi-judicial procedures unless expressly or necessarily excluded by statute. Precedent treatment: Authorities show a consistent trend that natural justice principles are to be read into adjudicatory processes; specific citations demonstrate that courts have required cross-examination where reliance is placed on investigation-stage statements and where reliability is in issue. Decisions that precluded cross-examination were confined to their facts (e.g., confessions) and not treated as universal rule. Interpretation and reasoning: The Court observed that the absence of express provision for cross-examination in the CGST Act does not eliminate the duty to afford a fair opportunity where required by circumstances. When the evidence on which an adverse order rests is third-party statements taken during investigation, the adjudicating authority must either produce the witness for examination before admitting the statement in evidence or, if unavailable for permitted statutory reasons, explain why reliance is permissible. Otherwise, the statements cannot safely serve as substantive evidence. Ratio vs. Obiter: Ratio - Natural justice can be read into CGST adjudication to require cross-examination in appropriate cases where third-party statements are material to the decision. Obiter - Limitations on right to cross-examine co-noticees and procedural modalities where unavailability is genuine. Conclusion: Principles of natural justice operate within the CGST adjudicatory framework and, in appropriate cases, require permitting cross-examination despite the lack of express statutory provision. Issue 3: Proper reliance on precedents cited by adjudicating authority and scope of exceptions (confessions/unavailable witnesses) Legal framework: Precedents must be applied factually; exceptions permitting denial of cross-examination exist (e.g., when makers are dead/unobtainable, or where statements are true confessions not requiring testing) but are fact-sensitive. Precedent treatment: The Court analyzed authorities relied upon by the adjudicating authority that upheld denial of cross-examination in different factual matrices (including confessional statements). The Court distinguished those authorities on facts, emphasizing that their rationale does not extend to situations where statements are non-confessional, retracted, or form the principal basis for an adverse finding between the parties to the transaction. Interpretation and reasoning: Application of precedents that upheld denial of cross-examination was inappropriate where the statements related directly to the transactions between the parties and were relied upon to reject petitioner's pleaded position. The adjudicating authority's reliance on such precedents without assessing factual fit and without addressing petitioner's specific requests and evidence was erroneous. Ratio vs. Obiter: Ratio - Authorities permitting denial of cross-examination are limited to their facts; they do not authorize blanket denial when third-party statements are material and testable. Obiter - Commentary on instances where denial may be justified (death, incapacity, deliberate unavailability). Conclusion: The impugned order wrongly relied on inapposite precedents; exceptions do not apply in the present factual matrix and thus denial was unjustified. Issue 4: Maintainability of writ remedy despite alternative statutory appeal Legal framework: Writ jurisdiction may be exercised despite an alternative remedy where exceptional circumstances exist, including where there is a demonstrated violation of principles of natural justice or where statutory procedures have not been followed. Precedent treatment: Judicial authorities recognize limited categories where writ relief is appropriate notwithstanding alternative remedies, particularly where fundamental procedural infirmity (e.g., denial of fair hearing) renders the impugned order void. Interpretation and reasoning: The Court found the writ maintainable because the petitioner's complaint was of a fundamental procedural nature (denial of a fair opportunity to test key evidence). Allowing an appellate tribunal that lacks power to remit or correct such procedural breaches to be the sole recourse would be ineffective in protecting basic rights. Ratio vs. Obiter: Ratio - Writ remedy is maintainable where there is an alleged total violation of principles of natural justice in adjudication, even if a statutory appeal exists. Obiter - Comments on appellate limitations under the scheme and need for remedial efficacy. Conclusion: The petition seeking judicial review was maintainable and appropriately entertained on grounds of breach of natural justice. Remedial Conclusion and Directions (Court's operative findings) The Court held that the adjudicating authority's refusal to permit cross-examination of third-party witnesses whose statements were recorded during investigation and relied upon in the impugned order offended principles of natural justice, caused prejudice, and rendered the order unsustainable. The impugned order was set aside and the matter remitted for fresh adjudication; the adjudicating authority was directed to summon the indicated witnesses, secure their presence, permit examination/cross-examination by the petitioner, and proceed afresh in accordance with law, with liberty to both sides to adduce additional evidence. All other contentions on merits were left open.