2018 (12) TMI 509

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.... for cross examination or not. This Tribunal in para 16 has observed as under:- "16. We also find that the adjudicating authority has not followed the procedure laid down under Section 9D of the Act. A Similar issue came up before this Tribunal in the case of Kuber Tobacco India Ltd. wherein vide Final Order No. 50938-50942/2016, dated 4-3-2016 [2016 (338) E.L.T. 113 (Tri. - Del.)], this Tribunal has observed as under :- We have gone through the facts of the case wherein the 7. certain machines were installed at Sandeep Poultry Farm Khasra No. 63/3, Village KheraKhurd, New Delhi-110082 found wherein 'Kanchan/Kanchann' brand gutka and 'wiz' brand pan masala manufactured clandestinely without declaring the said premises as registered premises for manufacture of the said gutka. The contention of M/s. Kuber is that they were not involved in the activity of manufacture of gutkhas and the said activity was illicit and misused of their brand name and goodwill of the appellant by certain elements who were manufacturing duplicate goods bearing M/s. Kuber brand names and clearing them in the market. The facts of the case are not in dispute, the appellants have raised the dispute that the ....

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....e Central Excise Officer shall be relevant, for the purpose of proving the truth of the facts contained therein. If the circumstances are absent, therefore, the statement, which has been made during the course of inquiry/investigation, before a gazette Central Excise Officer, cannot be treated as relevant for the purpose of proving the facts contained therein as observed by Hon'ble Delhi High Court in the case of J.K. Cigarettes (supra) wherein Hon'ble High Court has observed as under :- Bare reading of the above section manifests that under certain 12. circumstances, as stipulated therein, statement made and signed by those persons before any Central Excise Officer of a gazetted rank during the course of inquiry or proceedings under this Act can be treated as relevant and taken into consideration if under the given circumstances such a person cannot be produced for cross-examination. Thus, this provision makes such statements relevant for the purposes of proving the truth of the facts which it contains, in any prosecution for an offence under the Act in certain situations. Sub-section (2) extends the provision of subsection (1) to any proceedings under the Act other than a proce....

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.... of evidence they should place before the Court. But the duty of the court is only to appreciate the case in the proper perspective and on the basis of what is placed before the Court. Even with regard to the prayer for permitting the applicant to cross-examine the plaintiff, the prayer is misconceived as the question of cross-examination arises only when a witness has tendered evidence in chief-examination. Under section 138 of the Indian Evidence Act, cross-examination follows chief-examination, but not without chief-examination. If there is no chief-examination, there is no cross-examination. It is only witness who is examined in chief who can be cross-examined. Therefore, a prayer for cross-examination of the plaintiff even when the plaintiff has not been examined in chief is ridiculous and not provided for under Section 138 of the Evidence Act The Trial Court has rightly rejected the application. No scope for interference with an order of this nature. We further find that in the case of 11. Swiber Offshore Construction Pvt. Ltd. (supra), this Tribunal has further observed as under : We therefore have no hesitation in holding that the impugned 6. Order passed by the Commiss....

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....he witness testified on his examination-in-chief. Direction for re-examination. - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter." We therefore find force in the submission of the ld. counsel 10. for the appellant. We find no reason to justify rejection of request made by the appellant to the adjudicating authority in light of Section 138B of the Act, to summon witnesses for examination and to offer them for cross-examination if their statements were to be considered as relevant and admitted in evidence in the interest of justice. We further find in the case of 12. Bussa Overseas Properties Ltd., this Tribunal again observed as under :- The fact that in cases relating to smuggling or indeed any 24. case civil or criminal cannot or need not be proved for degree of mathematical precision or that the department governed by strict rules of evidence is again no answer. The department is certainly bound by the contents of the Customs Act, 1962 and the general principles of evidence. whi....