AI Drafter 
TaxTMI 
TaxTMI 
2013 (3) TMI 498
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.....12.2006, 23.12.2006, 12.02.2007, 13.02.2007 and 14.02.2007 with suppliers of raw materials and dealers of cement manufactured by the petitioner firm. 3. The investigation team recorded statements from the Managing Partner, key employees and suppliers of raw materials and dealers of finished goods. The whole proceedings ultimately culminated into the issuance of show cause notice in SCN No.59 of 2008, dated 03.06.2008 under 11(A) (1) of the Central Excise Act. The Petitioner firm was directed to show cause to the second respondent asto why Central Excise duty of Rs.2,48,59,309/- and education cess ofRs.3,76,748/- should not be demanded from them. The show cause notice also directed the petitioner firm to show cause as to why the penalty and interest should not be charged on them. The Petitioner firm was also directed to produce evidences on which they intended to rely in support of their defence. 4. The Petitioner sent an interim reply dated 12.12.2008. The petitioner also sought for cross-examination of all the witnesses including the mahazar witnesses. The second respondent fixed the personal hearing for cross examination of witnesses on 30.12.2008 at the office of the seco....
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....the Bombay High Court in M/s. Lakhanpal National Ltd vs. Union of India (cited supra) held that if the Department had barred from availing the assistance of the Investigation Officer, it would cause prejudice to the Department. It is further stated that in the instant case, the assistance of the Investigation Officer was called for, due to voluminous records relied on and only the Investigation Officers are in a better position with regard to the relevance of evidences, since they collected the evidences. 8. Heard both sides. 9. The learned counsel for the petitioner vehemently contended that neither the Investigation Officer M. Kalyanapasupathy, nor any of the members of the Investigating team shall be present during cross-examination proceedings and they shall not do re-examination, since the same would influence the entireproceedings in favour of the Department. The adjudicating authority namely, the second respondent, himself would examine/ re-examine/cross-examine the witnesses. 10. The learned counsel for the petitioner submitted that the presence of Investigation Officer in the cross-examination proceedings is nothing but the abdication of the authority by the secon....
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....thority by the Investigation Officer, who conducted the investigation resulting in the issuance of show cause notice. It was submitted that if the second respondent had done the job of chief examination and re-examination of witnesses, later the proceeding could be attacked by the petitioner stating thatthe second respondent exceeded its authority and he acted as a prosecutor aswell as a judge in the proceedings. The learned counsel relied on the following two judgements in this regard;- i) M/s.Lakshanpal National Ltd., Vs. Union of India reported in 1993 (63)ELT 61 ii)Lakhanpal National Ltd. v. U.O.I reported 1993 (63) ELT 61 (Bom.) 14. In fact, the leaned counsel for the respondents contended that having availed the assistance of a lawyer and a Consultant, the petitioner would not object for the representation of the Department by the Investigation Officials during the adjudication proceedings before the second respondent. It was argued that if the petitioner had any grievance, he could make out before the adjudicating authority and he could not demand that the investigation officer should not participate in the adjudication proceedings representing the department. 15....
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....tative, in the facts and circumstances of the present case, we do not see any illegality. Having regard to the facts and circumstances of the case, in our opinion, this is not a fit case where interim order should be granted."Interim order is accordingly refused. Ad interim order to stand vacated." 17. The judgements relied on by the petitioner have no application to thefacts of this case. Let me discuss each of the judgements separately. i) In the case of Commissioner of Income Tax, Shimla v. Green world Corporation, Parwanoo (cited supra), it was found that the higher authority interfered with the decision making process of the Assessing authority. The same was disapproved by the Hon'ble Apex Court. The Apex Court has held that the Commissioner or any other higher authority may have supervisory jurisdiction interms of circulars or orders issued by the CBDT, but the same shall not be construed to mean that the Assessing Authority exercising quasi-judicialfunction, would lose its independence to pass an independent order of assessment. In the said judgement, the Honourable Apex Court has held as follows:- "No doubt in terms of the circular letter issued by CBDT, the Commis....
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.... "hands over its discretion to another body it acts ultra vires". Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority. De smith sums up the position thus: "The relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case." Here in this case, there is no allegation that the second respondent, the adjudicating authority, has exercised its discretion at the dictates of other authority. Hence, the judgement relied on by the petitioner is not applicable. v) In K.S.Shivji & Co. Vs. Joint Commercial Tax Officer, Esplanade Division, Madras (cited supra) also the assessing officer failed to act independently and he acted as per the direction of the S....
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....o appeared as a witness before enquiry committee although he was one of the members of enquiry committee. The Apex Court further held that the enquiry committee that consists of Mr.Shri Maru Ram could not decide the issue without bias. The Apex Court further held that No person shall be a judge in his own cause. I am notable to understand how the same could be applied here. ii) In Tilak Chand Magatram Obhan v. Kamala Prasad Shukla and Ors. (citedsupra), the order of removal was set aside, when it was found that the Principal-member had a strong bias against the delinquent. In the said case, the respondent teacher was suspended from service and was charge-sheeted and an enquiry committee was appointed including the Principal of the School as a Member. Based on the finding of the said committee, the teacher was removed. It was found that the Principal was deeply biased against the teacher. The Principal had given notice to the delinquent for initiating defamation proceedings against him. It was alleged that his presence in the committee vitiated the atmosphere for a free and fair trial. Hence, the said judgementcould not be applied to the present case. The relevant passage of the ....