TaxTMI 
TaxTMI 
2010 (11) TMI 109
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The learned Single Judge further directed that the petitioner shall also be allowed an opportunity of cross-examining the persons whose statements have been relied upon and referred to in the show cause notice. The learned Single Judge held that it is natural that a person facing such an enquiry must have opportunity to cross-examine an author of a document or a person who has deposed against him during the course of an enquiry and, therefore, the appellants herein shall give to the respondent-petitioner the aforesaid opportunity. 2. Revenue has raised the following questions for consideration before this Court:- 1.Whether before the reply is filed to the show cause notice, is an assessee entitled to cross examine the witnesses whose statements were recorded, relied upon and referred to in the show cause notice? 2.Would giving a C.D. containing documents relied upon by the Department be sufficient or is it mandatory that hard copies be given and/or the copies printed by respondent at the cost of the appellants? 3. A few facts may now be set out. Search and seizure operations were carried out at various places including the factory and office premis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons, whose statements have been relied upon by the Department. According to the respondent, appellant no.1 by letter dated 08.03.2010, has supplied the copies of the various documents to the various persons and has fixed the date for final hearing on 10.06.2010. However, neither the copies of the documents were provided, nor the respondent was allowed to cross examine the persons as mentioned in the application dated 23.11.2009. The respondent had appeared in the office of respondent no.1 on 10.6.2010. However, appellant no.1 was not there and the respondent was asked to file reply within one week, but neither cross examination had been allowed, nor the photocopies of the documents were supplied. With the writ petition, the respondent had annexed the show cause notice and in paragraph 61 of the show cause notice, it was specifically set out that all the documents/records were available with the Director General of Central Excise Intelligence and could be inspected on any working day during office hours. It is also an admitted position that the appellants have given to the respondent a C.D. containing the documents. 6. At the hearing of this appeal, on behalf of the respon....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court." 10. We may mention here that as per the record, the adjudication proceedings have not yet commenced. It is in that context, that we shall first consider the issue raised on behalf of the appellants herein. 11. In International Electron Devices Ltd. v. Union of India [2010 (252) E.L.T. 352 (All.), a learned Division Bench of this Court was considering an issue of cross-examination of witnesses. The submission there was that the petitioner therein was entitled to cross examine the witnesses, who participated in the we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....43) E.L.T. 25 (SC). In Sunder Ispat Limited V. Commissioner of Cus. & C. Ex., Hyderabad [2002 (141) E.L.T. 24 (A.P.), a learned Division Bench of the Andhra Pradesh High Court held that the witnesses examined on behalf of the Department had to be produced for cross-examination in accordance with the principles of natural justice. We may also refer to the judgement of the Supreme Court in Lakshman Exports Limited V. Collector of Central Excise [2002 (143) E.L.T. 21 (SC)]. This also was in respect of proceedings in adjudication proceeding. That cross-examination at the stage of adjudication cannot be denied, is rectified in a large number of judgements. See: Gyan Chand Sant Lal Jain V. Union of India [2001 (136) E.L.T.9 (Bom.)], Swadeshi Polytex Ltd. V. Collector of Central Excise, Meerut [2000 (122) E.L.T.641 (SC)], Prayagdas Tushnial V. Collector of C. Ex. & Land Customs, Shillong [2000 (125) E.L.T. 377 (Gau.)], Lachmandas Tobacco Dealer V. Union of India and Ors. [1978 ELT J 502] and Kalra Glue Factory V. Sales Tax Tribunal and Ors. [1987 (66) STC 292]. 14. All these judgements in the matter of cross-examination are at the stage of adjudication. The law, therefore, at th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng proceeded against to disclose any material that the party may have to rebut the prima facie opinion. Even if, the assessee fails to reply to the show cause notice, that does not amount to an 'admission' of the contents of the show cause notice in the absence of any statutory provision and it is always open to an assessee to cross examine the witnesses whose statements are relied upon or sought to be examined on behalf of the Revenue. At the stage of show cause notice, there is no adjudication. It is only a step in the process of adjudication. The show cause notice by itself is not an order of assessment. The order of assessment will be passed only after considering the evidence and the material, which is placed before the quasi judicial authority/tribunal. Therefore, as the show cause notice is based on prima facie material and constitutes a prima facie opinion, that does not result into an order of adjudication. The question, therefore, of an assessee being entitled to cross examination, even before the adjudication has commenced, in our opinion, surely would not arise. It is only after the adjudication proceedings have commenced pursuant to the show cause notice and ....