Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2013 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (3) TMI 498 - HC - Central ExciseEvasion of Central Excise Duty - search operations conducted - petitioner vehemently contended that neither the Investigation Officer nor any of the members of the Investigating team shall be present during cross-examination proceedings and they shall not do re-examination, since the same would influence the entire proceedings in favour of the Department & the Investigation Officer and the Adjudication Officer shall not be one and the same - Held that:- Not able to understand as to how the presence of the Investigation Officer in the cross-examination proceedings or re-examinations of witnesses would amount to abdication of authority by the second respondent. In fact, if the second respondent refused to permit the presence of Investigation Officer during cross-examination of the witnesses and refused permission to Investigation Officer for re-examination of witnesses, the same would amount to abdication of its authority, particularly in view of judgements relied on by the Department of Sanghi Textiles Processors Pvt. Ltd. vs. C.C. Excise (1990 (8) TMI 160 - HIGH COURT OF ANDHRA PRADESH AT HYDERABAD) wherein a similar objection made by the petitioner was rejected stating that the Excise Department which had initiated the proceedings before the Collector against the petitioner has aright to have the assistance of the Investigating Officers who gathered the material on the basis of which the proceedings had been initiated. Also see Lakhanpal National Ltd. Vs. U.O.I. [1992 (9) TMI 94 - HIGH COURT OF JUDICATURE AT BOMBAY]. Failure to understand as to how the presence of Investigation Officer in the cross-examination proceedings and re-examination of witnesses by the Investigation Officer would be described as bias causing prejudice to the petitioner as the Investigation Officer collected statements from a witness commencing from 07.00 p.m. on 05.06.2006 and ended at 02.30 hours on the next day. The next witness was examined for half an hour from 2.30 a.m. on 06.12.2006. Hence, such an Investigation Officer shall not be allowed to be present before the adjudication authority for conducting re-examination of witnesses is unable to be appreciated the submissions made by the petitioner. If the petitioner has any grievance about the alleged irregular investigation, the same could be advanced before the second respondent and he could not ask on that pretext the exclusion of Investigation Officer in the adjudication proceedings. The Investigation Officer and the Adjudication Officer shall not be one and the same has no basis as here the Adjudication Authority is totally different from the Investigation Officer. In fact, if the Investigation Officer did not participate in the proceedings, then the petitioner could make such an allegation that the Adjudicating Authority acted as prosecutor and judge to himself. In the judgements relied on by the petitioners the investigation Authority also acted as Adjudicating Authority. Therefore, the same was disapproved by the Court. Hence those decisions have no application to the facts of the present case - writ petition dismissed.
|