TaxTMI 
TaxTMI 
2017 (4) TMI 33
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.... same is in breach of principles of natural justice. (3) Shorn of all the unnecessary facts, the case of the petitioner is that in the proceedings before the adjudicating authority, a report of the Central Revenues Control Laboratory (CRCL) was called for. In the meanwhile, the adjudication proceedings had proceeded further and the stage of personal hearing was over. Subsequently, the report of the Director (Revenue Laboratories), CRCL dated 30.12.2015 came to be received by the adjudicating authority and a copy thereof was provided to the petitioner. Upon receipt of the copy of the report, the petitioner addressed a communication dated 10.02.2016 to the adjudicating authority making various submissions and requested for an opportunity of crossexamining Dr. Y.K.S. Rathore, Director (Revenue Laboratories), under whose signature the CRCL report had been forwarded and also sought for opportunity of personal hearing in connection with the said report. The adjudicating authority, however, without affording any opportunity of crossexamining the Director (Revenue Laboratories) or affording any opportunity of hearing in respect of the subsequent report, passed the impugned Order-In-Orig....
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....y cross-examination. The court held that in this view of the matter, right to crosse-xamine or to have opportunity to effectively exercise that right is an essential part of principles of natural justice. (5) Vehemently opposing the petition Mr. Dhaval Vyas, learned Senior Standing Counsel for second and third respondents, submitted that merely because an opportunity of crossexamining the chemical analyzer or affording an opportunity of hearing after receipt of the report of the chemical analyzer has not been granted, the same would not amount to a breach of principles of natural justice, unless a case of prejudice is made out. It was submitted that in the communication dated 10.02.2016 the petitioner has requested for an opportunity to crosse-xamine the chemical analyzer on the inferences drawn in the report. The attention of the court was invited to the findings recorded by the adjudicating authority in the impugned Order-In-Original to submit that the adjudicating authority has only relied upon the findings contained in the report and not on the inferences drawn therein. It was submitted that since, in the impugned order, the adjudicating authority has relied only upon the fi....
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....on of this court in Manek Chemicals Pvt. Ltd.v. Union of India, 2016 (334) ELT 302, wherein this court was called upon to decide similar issues as have arisen in the present case. The court held thus: "18. At this juncture, reference may be made to the following decisions: 18.1 In Lachhman Das, Tobacco Dealers v. Union of India, (supra), the Delhi High Court held thus: " 4. The main attack of the learned Counsel was based on denial of natural justice as discussed in the earlier part of the judgment. In my opinion, denial of an opportunity to examine the Chemical Examiner constitutes such violation of natural justice as will entail the setting aside of the impugned orders. The petitioner was entitled to examine the Chemical Examiner to find out the basis of his report and also the treatment according to the sample between the period it was taken and analysed. For this reason, the three main orders have to be quashed." 18.2 In Mahek Glazes Pvt. Ltd. v. Union of India (supra), this Court has held thus: " 6. Having heard learned counsel for the parties, we are inclined to interfere on the short ground of serious breach of principles of natural justice in the process of pass....
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.... continues to hold the office of the Commissioner of Customs & Central Excise, SuratII. It would therefore, be not necessary to separately hear the petition once again before passing any such order. This would, however, not preclude the Commissioner from requiring the petitioners to show relevance for seeking cross-examination of the witnesses." 18.3 The Supreme Court in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others, (2013) 4 SCC 465, has held thus: "24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of crossexamining the witnesses examined by that party. Not providing the said opportunity to crosse-xamine witnesses, would violate the principles of natural justice. (See also Union of India v. T.R. Varma, Meenglas Tea Estate v. Workmen, Kesoram Cotton Mills Ltd. v. Gangadhar, New India Assurance Co. Ltd. v. Nusli Neville Wadia, Rachpal Sing....
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....a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to crosse-xamine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to crosse-xamine any official." 28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government, is that the Government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by crossexamining the witnesses produced against him. The object of ....
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....t or the Tribunal at first instance, even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it. In C.I.T. v. Chhabil Dass Agarwal (supra) on which reliance had been placed by the learned counsel for the respondent, the Supreme Court held thus: "15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law....
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....ontents of the report. However, without affording any opportunity to crosse-xamine the Director (Revenue Laboratories), CRCL, or granting an opportunity of personal hearing to respond to the said report, the adjudicating authority has proceeded further and passed the impugned Order-In-Original. (9) A close reading of the communication dated 10.02.2016, addressed by the petitioner to the adjudicating authority, reveals that the petitioner has set out detailed reasons as to why the inferences drawn in the CRCL report are incorrect and has also stated the reasons as to why it seeks to crosse-xamine the signatory of the said CRCL report viz. Dr. Y.K.S. Rathore, Director (Revenue Laboratories). The petitioner has further requested for personal hearing in the matter. However, in the impugned Order-In-Original there is no reference whatsoever to the above communication dated 10.02.2016 of the petitioner as to why the opportunity of cross-examination should not be granted and as to why the submissions made in the said communication did not merit acceptance. No reasons have been assigned as to why an opportunity of personal hearing was not granted. Resultantly, while the adjudicating aut....