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2018 (9) TMI 821 - AT - Central ExcisePrinciples of Natural Justice - Request of the appellant to cross examining the person declined - Held that:- The Department has just issued a Show Cause Notice which is based on prima facie material and is nothing more than constituting a prima facie opinion. At the stage of Show Cause Notice, there is no adjudication. It is only a step in process of adjudication because the Show Cause Notice in itself is not an order of assessment. The said order has to be passed post issuance of Show Cause Notice after affording an opportunity of hearing the parties and after considering the evidence and material which is placed before the adjudicating authority, the Central Excise Commissioner in the present case. The question of cross examination of such persons who are not yet been classified as witness or have not yet been summoned even by the adjudicating authority, does not at all arise. The findings of the Commissioner “that the persons for whom cross examination was sought have not even tendered any factual statement, the cross examination is not needed and therefore the same is denied” are therefore held to have no infirmity - The appellant is first required to submit his reply to the Show Cause Notice received. No doubt, the absence of his reply will not debar him from cross examining the witnesses but the stage of cross examination is post the examination in chief of a person who has been summoned by the adjudicating authority, in his discretion after satisfying himself qua his requirement to be examined as a witness to prove the allegations of the Show Cause Notice. The request of the appellant in question was a premature request before the Commissionerate hence the Order under challenge needs no interference - The adjudicating authority below/ Commissioner is required to reconsider the request of the appellant at the appropriate stage - appeal disposed off.
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