Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2005 (10) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2005 (10) TMI 98 - HC - Central ExciseWrit jurisdiction - Alternative remedy - Adjudication - breach of principles of natural justice - classification Of Product 'CHOCHO' exceeds 6% by weight - test carried out by the Deputy Chief Chemist - Petitioner seeking cross-examination of witnesses and personal hearing - methodology followed for determination of cocoa content - HELD THAT:- The opportunity to cross-examine involves not only notice of the adverse material but also a sufficient interval of time to prepare for cross-examination. The notice of the adverse material and opportunity of cross-examination is necessary because wherever the opponent has declined to avail himself of the offered opportunity, it must be supposed to have been because he believed that testimony could not or need not be disputed at all or be shaken by cross-examination. In this view of the matter, right to cross-examine or to have opportunity to effectively exercise that right is an essential part of principles of natural justice. Thus affected person must be given fair opportunity not only to answer the case against him but to adduce positive evidence in support of his own case together with right to contradict all adverse allegations, if necessary, by permitting him to cross-examine the witnesses of the opponent. It is needless to mention that although the principles of natural justice are aimed at ensuring a fair hearing, nevertheless, depending on all the circumstances of the case, a decision reached or hearing conducted in breach of the principles of natural justice is reviewable in an action of judicial review. In our view, the above principle would apply even where the petitioner has been denied opportunity to have the contents of the test reports relied upon by the respondents before the adjudicating authority. In our view, the adjudicating authority was, obviously, in error in not directing the respondents to supply copies of the test reports to the petitioners. A document to be relevant may support either the Revenue or the petitioner. No adjudicating authority can, therefore, refuse production of such a document simply because that document which is to be used against the subject is not relevant in its perception. This would certainly amount to refusal of reasonable opportunity to defend. This being the settled legal position, we hold that the adjudicating authority was, obviously, in error in refusing to direct the respondents to hand over the copies of the test reports to the petitioners which has, necessarily, prejudiced the defence of the petitioners. Having examined the case on the touchstone of breach of principles of natural justice, we do not think that we would be justified in accepting the submission that the petitioners should be relegated to the appellate remedy. On the contrary, in order to shorten the length of litigation, it would be in the interest of both parties to set aside the impugned order without expressing any opinion on its merits and remit the matter back to the adjudicating authority with direction to permit the petitioners to cross-examine the Deputy Chief Chemist on day-to-day basis and after evidence is over, it would be open for the adjudicating authority to heard the petitioners giving them reasonable time to make their submissions and to dispose of the adjudication proceedings in a fixed time schedule. So far as second impugned order dated 31st August, 2005 incorporated at Exh. A-1 is concerned, the basis of which being the impugned order dated 22nd July, 2005, that by itself cannot stand to the scrutiny of law. The same needs to be set aside. In the aforesaid view of the matter, impugned orders at Exh. A and Exh. A-1 are set aside. Petition is allowed in terms of this order and remitted back to the adjudicating authority to decide afresh in accordance with law. The adjudicating process must be completed with expeditious despatch, at any rate, within eight weeks i.e. on or before 10th December, 2005. Till then, in order to avoid multiplication of the proceedings, it will be advisable to keep all the show cause notices in abeyance. However, in the event the adjudication order is adverse to the petitioners, the same shall stand stayed for four weeks subject to furnishing bank guarantee within four weeks from the date of communication of the adverse order to secure the Revenue for the liability that may be determined in the adjudicating order. Both parties to appear before the adjudicating authority on 24th October, 2005. Rule is made absolute in terms of this order with no order as to costs.
|