TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 1024
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....se for the period 2/2005 to 5/2010 and evasion of customs duty. The appellants filed writ petitions before the Hon'ble High Court of Madras at Madurai Bench, contending that earlier Central Excise authorities upon same allegation sent a draft show cause notice in 2/2011 to the Customs authorities and that customs authorities had communicated their view to the excise authorities that there is no violation of the conditions of the exemption notification and the issuance of the show cause notice is not warranted. The appellants contended that the present show cause notice is only an inverbatim copy of show cause notice prepared earlier by Excise authorities and that the show cause notice now issued by Customs cannot sustain. The order passed by ld. Single Judge of Hon'ble High Court in the writ petition was appealed before the Division Bench. Appellants filed SLP before Hon'ble Apex Court against the order of the High Court of Madras. The Hon'ble Apex Court vide interim order dated 21.4.2017 directed the Commissioner to pass final order after adjudication of show cause notice and keep the order in sealed cover. During such adjudication proceedings, the appellants requested the adjudic....
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....rsons whose cross-examination is sought for are employees of the appellant and that none of them have retracted their statements. He argued that this cannot be a ground for rejecting the request for cross-examination. Section 138B of the Customs Act, 1962 which is pari materia to Section 9D of the Central Excise Act, 1944, provides for grounds on which the statement can be relied without putting to the test of examination of the witness. That none of the circumstances existed in the present case and the rejection of request for cross-examination is on flimsy ground, without legal basis and amounts to violation of natural justice. He relied upon the decision in the case of Mahek Glazes Pvt. Ltd. Vs. Union of India - 2014 (300) ELT 25 (Guj.). The decision in Basudev Garg Vs. Commissioner of Customs - 2013 9294) ELT 353 (Del.), was relied to argue that cross-examination is a valuable right of noticee in quasi-judicial proceedings which when denied may have adverse consequence upon them. The decision of the Larger Bench of the Tribunal in the case of Gaurav Pharma Ltd. Vs. Commissioner of Central Excise - 2015 9326) ELT 561 (Tri. LB) was also relied upon by the ld. counsel to support h....
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....is no necessity for cross-examining the witnesses. If aggrieved by the rejection of request for cross-examination, the same can be taken up in the grounds of appeal in case the Order-in-Original is against the appellant. The ld. AR relied upon the decision of the Hon'ble Supreme Court in the case of Kanungo & Co.. Vs. Collector of Customs - 1983 (13) ELT 1486 (SC). 4.1 With regard to the issue of rejecting the request for supply of documents, the ld. AR submitted that these documents are not relied upon documents. All the documents which are relied upon for issuing the show cause notice has been supplied to the appellant. The appellant is harping upon irrelevant documents only for delaying the adjudication. Further, these are inter-office communications and the appellants who are parties to proceedings have no right to get copies of the same. It is also argued by the ld. AR that the appellants have not stated clearly as to what are the documents required by them. Appellants submitted an RTI application requesting for copies of correspondence exchanged between Customs and Excise authorities. The department supplied copies of letters dated 13.9.2014 and 9.1.2015. If they are aggriev....
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....r. 2. The issue is relating to the denial of permission to cross-examine certain witnesses during the course of adjudication proceedings initiated under Section 28 read with Section 124 of the Customs Act. 3. The petitioner had approached this Court challenging the above order. This Court vide Ext. P4 judgment, directed the petitioner to approach the Tribunal. Thereupon, the petitioner approached the Tribunal. 4. The Tribunal by impugned order found that the appeal is not maintainable under Section 129A of the Customs Act. It is challenging this order; the petitioner has approached this Court. 5. Section 129A(1)(a) provides as follows : "(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order, - (a) a decision or order passed by the Commissioner of Customs as an adjudicating authority;" 6. The above provision would clearly indicate that any order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority, an appeal would lie before the Tribunal. 7. In that view of the matter, this Court is of the view that the impugned order is liable to be set aside. Accordingly, E....
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....dent. Request for cross-examination has been denied and the witnesses have not been examined despite specific reliance by the appellant on Section 138B without there being any objective formation of opinion based on any material on record to come to the conclusion that any specified circumstance mentioned in Section 138B(1)(a) exists. These circumstances mentioned in Section 138B(1)(a) are also contained in pari materia Section 9D(1)(a) and were recorded as follows in J.K. Cigarettes Ltd., 2009 (242) E.L.T. 189 (Del.) - xxx xxxx xxxx xxxx xxxx 8. The appellant has also relied on the judgment of Hon'ble Apex Court in Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367 to give emphasis on his submission that examination of witness is mandatory unless specified exceptional circumstances mentioned in clause (a) of Section 138B(1) exist. The Hon'ble Apex Court was pleased to hold that- "8. It will be pertinent at this stage to refer to Section 138 of the Evidence Act which provides : "138. Order of examinations. - Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examina....
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....ench also observed as under :- "29. Thus, when we examine the provision as to whether the provision confers unguided powers or not, the conclusion is irresistible, namely, the provision is not uncanalised or uncontrolled and does not confer arbitrary 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 exercise of powers. The aggrieved party is not remediless. This order/opinion formed by the quasi judicial authority is subject to judicial review by the appellate authority. The aggrieved party can alway....
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....pinion that the denial of cross-examination is unjustified. The decision relied by the ld. AR in the case of Kanungo & Co. (supra) is on different facts and distinguishable. In the said case, the request was for cross-examination of informer which was declined. Further, the decision was rendered prior to introduction of Section 138B and 9D in the relevant enactments. We therefore direct the adjudicating authority to follow the provisions of section 138B of the Customs Act, 1962 and permit cross-examination of witnesses sought for by the appellant. 12. The next point to be considered is regarding the rejection of request for supply of documents. On perusal of records, we find that the appellant has not requested for any particular document. They filed an RTI application and obtained copies of letters dated 13.9.2014 and 9.1.2015. It is their case that the entire chain of correspondence in regard to the issue of show cause notice has not been provided to them. The appellant could have filed another RTI application or could have pursued the very same application by filing an appeal before the first appellate authority under the RTI Act. Without specifically stating what is the partic....