TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 432
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....final hearing. 5. The challenge in this petition is to an order dated 17th February 2016 passed by the Deputy Commissioner (Adjudication) ICD Import Thuglakabad [hereafter the 'Adjudicating Authority' (AA)] declining the Petitioner's request for cross-examination of two persons, whose statements have been relied upon in the proceedings initiated against the Petitioner. issue concerns the denial by the Commissioner of Customs. 6. The facts are not in dispute. A show cause notice ('SCN') dated 1st November 2014 was issued to M/s Spreet International (hereafter 'importer') as well as the Petitioner and four others by the Additional Director General, Directorate of Revenue Intelligence (DRI). The SCN alleged that the impor....
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....r. Shyam Lal and Ms.Preeti. This was reiterated by another letter dated 15th February, 2016. The attention of the AA was drawn to Section 138 B of the Customs Act, 1962 ('Act') and the decision of this Court in Flevel International v. Commissioner of Central Excise 2016 (332) ELT 416 (Del) which in turn referred to the decisions in Basudev Garg v. Commissioner of Customs 2013 (294) ELT 353(Del), Laxman Exports Ltd. v. Controller of Central Excise 2002 (143) ELT 21( SC) and Swadeshi Polytex ltd. v. Collector of Central Excise 2000 (122) ELT641 (SC). 10. By the impugned order dated 17th February 2016, the AA rejected the above request of the petitioner. The AA relied on a decision of the CESTAT in Jagdish Shankar Trivedi v. Commissio....
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....not be entitled to cross-examine the maker of such statement in the course of the adjudication proceedings. The decision in Shahid Balwa (supra) which arose under the Foreign Exchange Management Act 1999 acknowledged, in para 7.2, that the enforceability of the right to cross-examine witnesses or persons who have made statements against a party "if demanded, would depend upon the facts and circumstances of the case, the nature of enquiry, the provisions of the statute and the rules as also the regulations governing the enquiry, the conduct of the person seeking to enforce the right of cross-examination i.e., as to whether such a right was demanded in the very first instance or not, the prejudice, if any, caused to such a party by being deni....
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.... Division Bench of this Court in Basudev Garg (supra) as under: "10. Insofar as the general propositions are concerned, there can be no denying that when any statement is used against the assessee, an opportunity of cross-examining the persons who made those statements ought to be given to the assessee. This is clear from the observations contained in Swadeshi Polytex Ltd. (supra) and Laxman Exports Limited (supra). Apart from this, the decision of this court in J & K Cigarettes Ltd. (supra) clinches the issue in favour of the appellant. In that case, the validity of Section 9D of the Central Excise Act, 1944 was in question." 15. After noticing the decision in J & K Cigarettes Ltd. v. Collector of Central Excise reported in 2009 (242) E....
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....ary powers upon the quasi judicial authority. The very fact that the statement of such a person can be treated as relevant only when the specified ground is established, it is obvious that there has to be objective formation of opinion based on sufficient material on record to come to the conclusion that such a ground exists. Before forming such an opinion, the quasi judicial authority would confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exe....