TaxTMI 
TaxTMI 
2011 (1) TMI 634
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....eir claim for cross- examining certain officers of customs and others was rejected without hearing them. It has also been submitted by the counsel for the first two appellants that those documents, which were seized from their premises by the investigating agency but not relied on in the show-cause notice, were not returned despite repeated requests. We have heard the learned Jt. CDR, in answer to these submissions of the counsel. It is submitted that the appellants did not co-operate with the adjudicating authority and resorted to dilatory tactics in one way or the other whenever hearing notices were issued to them. According to the learned Jt. CDR, the merits of the case have to be considered to determine whether the appellants should be directed to make pre-deposits under Section 129-E of the Act. 2. Having perused the records and considered the submissions, we are of the view that the adjudicating authority chose to dispose of the case hurriedly without following the principles of natural justice. In this scenario, it may not be desirable to keep the matter pending with the Tribunal. Therefore, after dispensing with pre-deposits, we take up the appeals for final disposa....
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....tada submitted a letter to the Commissioner informing him that he had challenged his decision dated 16-12-09 before the Hon'ble Bombay High Court and, therefore, the hearings should be deferred. The learned counsel for Mr. Bhutada has submitted that the writ petition was withdrawn. The Jt. CDR has placed on record sufficient materials to indicate that the writ petition filed by Mr. Rajendra G. Bhutada was rejected by the Hon'ble High Court vide order dated 23-9-09 giving opportunity to the petitioner to pursue appellate remedy against the Commissioner's final order of adjudication. It appears from the documents filed by the learned Jt. CDR that the writ petition was filed against denial of cross-examination and that it was not further pursued before the High Court inasmuch as, during the pendency of the writ petition, the Commissioner passed final order of adjudication. It also appears from the Hon'ble High Court's order dated 23-9-09 that their Lordships noted that the writ-petitioner had alternate efficacious remedy. Accordingly, the petition was rejected by making it clear that it will be open to the petitioner to prefer an appeal against the Commissioner's order. These records ....
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....documents were not returned to the appellants. 4. Bhutadas did not get a third opportunity of being personally heard. In this connection, the learned Jt. CDR has also referred to Section 122A of the Customs Act. This provision was considered by a Co-ordinate Bench of this Tribunal in the case of Jindal Waterways Ltd. v. Commissioner, 2009 (247) E.L.T. 715 (Tri.-Mum.). The Bench held that maximum three adjournments could be granted to a party by an adjudicating authority and that whether adjournment should be granted or not would entirely depend upon the discretion of the adjudicating authority depending upon the circumstances of the case. The Bench further held that, even after grant of three opportunities, nothing prevented the authority from showing necessary indulgence to the party, if any extreme difficulty was brought on record in the matter of attending the earlier personal hearings. We have found sufficient reason, in the instant case, to hold that the adjudicating authority ought to have given the parties a reasonable opportunity of being heard after supplying of the requisite documents and by extending time for filing reply to the show-cause notice. The position is....
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....natural justice. Once a witness has been cross-examined, it is open to either side to claim support from the record of cross-examination, at the final hearing stage. If the reasoning for denying cross-examination are stated only in the final order, the whole proceedings should be held to be violative of the principles of natural justice. In this context, the Hon'ble High Court's order dated 23-9-09 in Writ Petition No. 793/09 comes to our mind once again. While disposing of the writ petition, their Lordships observed that the writ petitioner had an alternative efficacious remedy by way of appeal against the order of adjudication. It is this remedy which is being pursued by the appellants at present against the denial of cross-examination. The case law cited by the counsel on the cross-examination aspect includes Air Trade International v. Commissioner, 2010 (251) E.L.T. 471 (Tri.-Mum.), Bharat K. Dattani v. Commissioner, 2000 (121) E.L.T. 256 (Tri), Swadeshi Polytex Ltd. v. Collector, 2000 (122) E.L.T. 641 (S.C.), Laxman Exports Ltd. v. Collector, 2002 (143) E.L.T. 21 (S.C.) etc. In most of these cases, the matters were remanded to the original authority with a direction to conside....