Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2021 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 180 - GUJARAT HIGH COURTClandestine manufacture - petitioner sought the inspection of the relied upon documents and the statements as well as those statements which had not been relied upon by the department - seeking cross-examination of witnesses - principles of natural justice - HELD THAT:- The Courts have thus upheld the rights of cross examination and any denial of the opportunity on that count has been held to be in violation of the principle of natural justice. It is the right of the defence/litigating parties to ask for the examination of defence witnesses who could be from any pool which can include those witnesses whose statements have been recorded and not relied upon by the Department while prosecuting the person. In the instant case, the statements have been recorded of many of the witnesses and some of whom have not been examined as they have not been relied upon in the show cause notice. Surely from the said pool, the defence can make a request for examination of witnesses as defence witnesses and that simply cannot be denied by the authority. We are not in agreement with the respondent department when it disputes that basic proposition that the statements of prosecution witnesses which have not been relied upon and if the request comes forth for those witnesses to be examined as the defence witnesses, the same shall need to be allowed, subject to statutory provision of Section 128 as it is always to be left to the parties concerned in adjudicatory process as to whom they need to be brought as the defence witnesses. Here some of the witnesses are those whose statements were recorded before the show cause notice had been issued and for the reasons suited best to the respondents, quite a few of them were not included in the show cause notice. It would be always the right of the party against whom the show cause notice is issued to call them as defence witnesses as it is the right given to the party which faces the adjudication proceedings. The Court needed to take a note of the fact that the order-in-original came to be passed despite the specific assurance given by the then learned Standing Counsel. It is also reflected in the order-in-original. We had directed the affidavit to be filed however, that has not come on record. We have chosen not to stretch this issue, but, the then learned Standing Counsel was expected to guide the officer concerned dispassionately and as otherwise needed as Court Officer. The order-in-original is passed in complete disregard to the adjournment sought by the respondent and assurance given to the Court even while urgency was made. Remand the matter back to the authority who passed the order-in-original to hear it from the stage where it was when they approached this Court. Let the petitioner cooperate. The matter to be completed in twelve (12) weeks’ time from the date of receipt of copy of this order - Petition allowed by way of remand.
|