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2023 (9) TMI 733 - HC - CustomsPrinciples of natural justice (audi alterem partem) - whether the adjudicating authority was right in refusing an opportunity of cross-examination of natural persons whose statements recorded under Section 108 of the Customs Act, 1962 had been referred to and relied upon in the adjudication order, or not? - HELD THAT:- In UNION OF INDIA AND ANOTHER VERSUS TULSIRAM PATEL AND OTHERS [1985 (7) TMI 371 - SUPREME COURT] the Supreme Court has considered several appeals by special leave and petitions under Article 32 of the Constitution raising substantial question of law as to the interpretation of Articles 309, 310 and 311 of the Constitution. The proceedings involved government servants who had been either dismissed or removed from service without holding any enquiry, they being not informed of the charges against them nor given any opportunity of being heard in respect of such charges. LAKSHMAN EXPORTS LIMITED VERSUS COLLECTOR OF CENTRAL EXCISE [2002 (4) TMI 66 - SC ORDER] has also recognized that, an assessee should be allowed to cross examine the representatives of the prosecution to establish that the goods in question had been accounted for in their books of accounts and appropriate amount of Central Excise had been paid, in proceedings under the Central Excise Act, 1944. The contours of natural justice in the context of seizure of a vehicle by the Customs Department under the provisions of the Customs Act, 1962 had come up on consideration in TAPAN KUMAR BISWAS VERSUS UNION OF INDIA (UOI) AND ORS [1995 (7) TMI 429 - CALCUTTA HIGH COURT]. In the facts of that case, the writ petitioner had neither filed show-cause nor took any steps to inspect the documents. In such context, request for cross-examination had been turned down. It had observed that, Section 124 of the Customs Act, 1962 itself provides for the extent of application of the principles of natural justice. In the facts of that case, it had held that, the writ petitioner was not entitled to cross-examine any witness. Principles of natural justice have two primary facets, namely, no one should be the judge of his cause and hear the other side. The issues that have been raised in the three appeals pivot around the audi alterem partem rule of the principles of natural justice - Principles of natural justice have been recognized to be a part of Article 14 of the Constitution of India. It has also been recognized that, Article 14 is not the sole repository of the principles of natural justice. Principles of natural justice stand attracted in every adjudicatory proceeding, be it judicial, quasi judicial or administrative, unless specifically excluded by statute. An administrative action or a quasi judicial decision has to conform with the principles of natural justice when such action or decision affects the rights or results in consequences for a party. Audi alteram partem which is a dimension of the principles of natural justice has the requirement of allowing cross-examination of the witnesses who give evidence against the delinquent. It has been recognized by judicial pronouncements that, administrative and quasi judicial orders must also adhere to the principles of natural justice. Courts have held that adherence to the principles of natural justice in the decision making process of administrative and quasi judicial authorities/bodies prevents injustice. Courts have carved out an exception to the adherence to the principles of natural justice. In FEA 25 of 2009 the appellant had suffered order in original and appellate authority’s order where, at both stages, the prayer for cross-examination of prosecution witnesses had been negated. On the parity of the reasoning of FEA 2 of 2009 and FEA 3 of 2009, since, the authorities had introduced evidence of natural persons in the adjudication proceedings, the appellant was entitled to cross-examine such natural person. Not having been allowed to cross-examine such witness of the prosecution, in the adjudication proceedings, the entire proceedings stood vitiated. The appellate authority had incorrectly held that the appellant was not entitled to cross-examine the prosecution witnesses. The authorities are at liberty to commence the adjudication proceedings from the stage of evidence of the prosecution. All prosecution witnesses have to be allowed to be cross-examined by the appellants - appeal disposed off.
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