AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 143
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....ed that the impugned order dated 18.03.2025, passed by the respondent No. 2 (at Annexure-A) is in complete defiance of the directions issued by the Central Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad ("the Tribunal" for short), in Customs Appeal No. 12442 of 2014, hence is liable to be quashed. It is submitted that albeit, the Tribunal while remanding the matter had directed the adjudicating authority to grant an opportunity to the petitioner to cross-examine the witnesses, who were not cross-examined in the first instance; the respondent No. 2 has passed the impugned order ignoring the statements of three witnesses, who have deposed in favour of the petitioners after cross-examination, while concurrently consid....
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....ection-1 to Section 138-B of the Act, hence the impugned order dated 18.03.2025 is required to be sustained. 3. The facts established from the record are that petitioner No. 1 is a partnership firm registered under the provisions of the Indian Partnership Act, 1932, petitioner No. 2 is a partner of the firm and a citizen of India, and petitioner Nos. 3 and 4 are the persons, who are alleged to have contravene the provisions of Section 112(a) and Section 114(iii) of the Act and accordingly, penalty is imposed under the said provisions. The petitioner No. 1 is engaged in manufacturing of excisable goods like copper ingots/billets etc. 4. The petitioners were issued a show cause notice dated 04.05.2012, calling upon as to why the penalty....
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....de and appeals are allowed by way of remand to the adjudicating authority for fresh adjudication after granting the appellant to due opportunity for cross-examination. All the issues are kept open." 6. Thus, from the aforesaid order, it appears that there were six witnesses whose evidence was considered against the petitioner's bereft of their cross-examination, though requested as per the provisions of Section 138-B of the Act, and by placing reliance on the judgments of various High Courts. Hence, the matter was remitted back to the adjudicating authority for fresh adjudication after granting the petitioners, due opportunity for cross-examination. 7. After the matter was remitted, the respondent No. 2 reheard the entire matter and h....
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....avour of the petitioner. This fact is not disputed by the respondents before us. 9. The case of the respective parties' hinges on the provision of Section 138-B of the Act. We may refer to the provisions of Section 138-B of the Act, which are reproduced hereunder: "138B. Relevancy of statements under certain circumstances.-(1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept o....
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.... proceedings. Unless an opportunity of cross-examination is given to the person (assessee) against whom the statement of such witness is proposed to be used, the same is inadmissible in evidence, since the denial or absence of cross-examination of the witness, and the admissibility of such statement in evidence will be in violation of the principles of natural justice and also against fair play and equity. However, clause (a) exposits a different approach. Clause (a) authorizes the officer to consider the relevancy of the statements of that witness, who under the circumstances narrated therein, is a person/witness, who cannot be produced or is unavailable for cross-examination. The language of clause (a) is akin to Section 32 of the Indian ....
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....he witness unless some corroborative material is produced to support such statement, and the assessee is offered an opportunity to rebut the same. The officer has to record reasons, based upon the material placed before him, for arriving at a definite finding. In our opinion, in either of the scenarios envisaged in clause (a) or clause (b), the evidence has to pass the test of admissibility in the interest of justice. 11. In the instant case, the respondent No. 2, while passing the impugned order, was required to consider the evidence of three witnesses, who appeared in the proceedings and were cross-examined along with the statements of three other witnesses who did not come for cross-examination. The relevancy of the statements of thre....