2017 (6) TMI 270

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.... the appellant, pursuant to show cause notice dated 23/07/2015 issued to them, requesting among other things cross examination of witnesses whose statements were relied upon in the show cause notice. The said communication stated as below :- "In this context, I have been directed by the adjudicating authority to inform that the opportunity of cross-examination of certain persons had already been given wherever the reasons were found justifiable. Accordingly, you are requested to file final reply along with the duty calculation chart in this regard, if any, within 7 days of the receipt of this letter failing which the subject case shall be taken up for adjudication on merit on the basis of facts available on record". 2. The learn....

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....f Section 9D of the Act and in accordance with legal principles laid down in para 33 of Ambika International (supra). 3. The learned AR submitted that the present appeals are premature. The Adjudicating Authority has the discretion to allow cross-examination, as per the opinion formed on perusal of records. Since, the case has not been adjudicated, the appellants present prayer is pre-emptive and has no merit. He also relied on various decisions to state that cross-examination is not mandatory in respect of all cases where statements were relied upon. Where there are corroborative evidences by way of documents or other nature, the non cross-examination of witness will not prejudice the noticee and cannot be held that is a violation of pr....

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....dly held that when the statement is relied upon the test of Section 9D has to be applied. There is no substantial difference between the proceedings before the Adjudicating Authority or before a court as specifically mentioned under Section 9D (2) of the Act. 5. The show cause notice being issued relying on certain statements and such show cause notice being signed and issued by the Adjudicating Authority by itself may not comply with the process of admission of such statements as evidence for adjudicating the case. The show cause notice issued is on consideration of evidence available and on prima facie opinion of the officer. However, at the time of adjudication, the Adjudicating Authority has to follow the procedures with reference to....