TaxTMI 
TaxTMI 
2023 (6) TMI 1154
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....orities. 2. Working on the intelligence, the officers of DRI started investigation against the importer/assessee on the allegation that the 100% EOU unit are engaged in exporting brass items after regularly inflating the weight of the consignments in the export/ deemed export documents with an objective to wrongly claim fulfillment of their export obligation. After detailed investigation, a show cause notice dated 17.01.2012 was issued to the importer/ assessee namely Indu Overseas Pvt. Limited and most of the other appellants which have filed appeals here. The matter was adjudicated by impugned order-in-original dated 30.03.2013 wherein mostly the allegations made in the show cause notice have been confirmed by the Adjudicating Authority. The appellants are before us against the said impugned order-in-original. 2.1 At the very beginning the learned Advocate appearing for the appellants contended that there is gross violation of principles of natural justice. In this matter, at the time of adjudication they have asked for the cross-examination of the persons namely, Shri Nitin Dinesh Singala, Shri Sanjiv Kumar Durgpal Singh, Shri Anand C. Patel and Shri Bhavesh S. Shah but no cro....
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....re, is to ensure that the statement of any person which has been recorded during search and seizure operations would become relevant only when such person is examined by the adjudicating authority followed by the opinion of the adjudicating authority then the statement should be admitted. The said provision in the statute book seems to have been made to serve the statutory purpose of ensuring that the assessee are not subjected to demand, penalty interest on the basis of certain admissions recorded during investigation which may have been obtained under the police power of the Investigating authorities by coercion or undue influence. Undoubtedly, the proceedings are quasi criminal in nature because it results in imposition of not only of duty but also of penalty and in many cases, it may also lead to prosecution. The provisions contained in Section 9D, therefore, has to be construed strictly. Therefore, unless the substantive provisions contained in Section 9D are complied with, the statement recorded during search and seizure operation by the Investigation Officers cannot be treated to be relevant piece of evidence on which a finding could be based by the adjudicating authority. A....
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....n an adjudication proceeding which is adversarial in nature, a party adducing evidence through a natural person is required to allow cross-examination of such natural person, to the other side. In the present case apparently the prosecution was relying upon evidence adduced by natural persons in the proceeding. The prosecution, therefore, ought to have allowed such persons to be cross-examined. The petitioner made a request to the adjudicating authority for an opportunity to cross-examine. Such request was made by the written notes of defence. The adjudicating authority took such written request on record. However, it did not allow the petitioner to cross-examine the prosecution witness. It did not deal with the request for cross-examination, in the impugned order. It is not necessary that, a party to a proceeding, specify the reason why it requires the cross-examination of the witness. When, a contesting party in adversarial litigation adduced evidence through a natural person, it results in a corresponding right to the opposite party in such adversarial proceeding to cross-examine such natural person. In absence of such cross-examination being allowed or facilitated the evidence ....
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.... 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 always challenge that in a particular case invocation of such a provision was not warranted." The Hon'ble Madras High Court in the case of Veetrag Enterprises v. Commi....