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2022 (1) TMI 1407 - HC - Central ExciseViolation of principles of natural justice - Rejection application for cross examination ex-parte without giving an opportunity of hearing - Clandestine manufacture and clearance of finished goods - HELD THAT:- The Court was addressing the issue of permitting the cross examination of those witnesses, whose statements had been recorded and who had not been examined as the prosecution witnesses - The Court relied on the decision of MS NAINA VERSUS COLLECTOR OF CUSTOMS, WEST BENGAL, CALCUTTA-I [1971 (6) TMI 11 - HIGH COURT AT CALCUTTA] where the Court has recognised the right of cross examination and any denial of opportunity on that count to be treated as the violation of principle of natural justice. Thus, what has been made clear is that the subject to the statutory provision of Section 128 of the Act, it is the right of the parties in the adjudicatory process as to whom they need to bring on record as defence witnesses. It is held that it is the right of the parties against whom the show cause notices issued to call those persons to make a request for the defence witnesses of even those witnesses who have been dropped out by the department to be examined as defence witnesses - it was held that the same was impermissible as no one can be cross examined without being examined by one of the parties as the witness. Section 128 of the Customs Act, which is pari materia with Section 14 read with Section 9 D of the Act. Now, Section 14 of the Act provides power to summon person to give evidence and produce evidence in inquiries. This authorizes the Central Excise Officer empowered by the Central Government to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purposes of this Act. As per the order which is impugned here, the statement of five persons were found to be relevant in the adjudication proceedings, they were admitted as evidence and therefore, the request for cross examination of those witnesses had been granted - Per se, there cannot be any dispute with regard to the right to examine the defence witnesses, however, that was never the request on the part of the petitioner. The application, which has been moved after this Court had quashed and set aside the order and remanded the matter back on having found the order-in-original to have been passed without availing an opportunity to the party, hence, no interference is desirable. Petition disposed off.
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