TaxTMI 
TaxTMI 
2024 (5) TMI 335
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....d to the appellant had stated that the final personal hearing has been scheduled before the competent authority on 05.10.2023 at 11:30AM. The impugned communication has also referred to the letter dated 12.09.2023 of the Deputy Director, in the Directorate of Revenue Intelligence (DRI), conveying that the date for cross examination has already been given to the Panchas, forensic expert and officers. Further, in the said letter dated 12.09.2023, request has also been made by the officer of DRI to the adjudicating authority that the decision taken by him for allowing the cross examination of the officers and witnesses may be reviewed. 2. The appellant has assailed the impugned communication, inter-alia, on the ground that though specific req....
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....gainst before the Appellate Tribunal. In this case, the impugned communication dated 25-09-2023 has conveyed the date of personal hearing fixed before the adjudicating authority in respect of the SCN dated 20.10.2022 issued by him. The notice for personal hearing issued by the Superintendent is only a communication of the date fixed by the Commissioner of Customs and is not a decision of the Superintendent himself. Normally, it is for the Commissioner to fix or re-fix the dates of personal hearing. However, the grievance of the appellant is that no decision has been taken by the Commissioner on its request for cross examination. In our considered view, for this reason, this should be construed as an 'appealable order' for filing of appeal b....
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....h the impugned letter dated 25.9.2023, a copy of the letter dated 12-09-2023 from the Deputy Director of DRI to the officer in the Adjudication Branch has been enclosed conveying the views of DRI on the request for cross-examination. 7. The Commissioner of Customs is the adjudicating authority with regard to the SCN issued to the appellant. As a quasi-judicial authority, the adjudicating officer is supposed to apply his independent mind in deciding the case pending before him or in connection with any other related prayers (in this case, the request for cross examination). He cannot be dictated by or adopt the views of DRI or any other departmental authority. 8. If the appellant's request for cross-examination was sent to the DRI to seek ....
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....e letter of DRI on the request is not correct. In this context, the Hon'ble Supreme Court in the case of Andaman Timber Industries Vs. Commissioner of C. Ex., Kolkata-II - 2015 (324) E.L.T. 641 (S.C.), has held as under: "6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the....
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....Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17-3-2005 [2005 (187) E.L.T. A33 (S.C.)] was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. 8. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid tw....