TMI Blog2010 (11) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents, then the Department shall, within 15 days of the receipt of the letter in respect of those copies, make them available to the respondent herein at the Department's cost - The appeal is disposed of - Special Appeal No.[741] of 2010 - - - Dated:- 29-11-2010 - Ferdino I. Rebello, A.P. Sahi, JJ. (Delivered by: Justice Ferdino I. Rebello, Chief Justice) This is an appeal by the Revenue against the orders dated 15.06.2010 and 09.07.2010 passed by the learned Single Judge. The learned Single Judge was pleased to issue a direction that it is obligatory on the part of the Revenue to return the non-relied documents to the assessee. Further the relied documents or copies thereof must also be furnished to enable the petitioner (respondent herein) to plead its case effectively and defend itself. Consequently, a direction was issued to return the original and non-relied documents and to furnish the copies (hard/photo copies) of the relied upon documents to the petitioner. The petitioner was also permitted to inspect the original documents and the materials sought to be used against him during the proceedings. The learned Single Judge further directed that the petitioner s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not supplied to them in spite of the specific requests and that the same were essential for offering their reply to the show cause notice. A specific prayer was also made for providing the copies of the relied upon documents and return of non-relied upon documents. It is pointed out that the appellants were bound to allow the application of the respondent in view of various Circulars dated 25.04.1988, 10.06.1988 and 08.09.2006. According to the respondent, on 27.02.2009, the Commissioner of Central Excise passed an order where it was observed that the respondent had a right to be provided with copies of the relied upon documents to make proper representation and that had been met by providing a CD containing the said documents. The Commissioner further observed that in these circumstances, the request for supply of hard copies of all the voluminous documents appears to be unreasonable and made only with an intention of delaying the adjudication proceedings. The respondent thereafter filed two applications, one of supply of documents and another for seeking cross examination of the persons, whose statements have been relied upon by the Department. According to the respondent, app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservance of Principles of Natural Justice by Departmental adjudicating authorities will result in avoidance of frequent remand of cases on the ground of non-observance of the same. The Departmental Adjudication manual contains detailed instructions/guidelines about the Principles of Natural Justice which much be followed in letter and spirit by each Departmental adjudicating authority". Learned counsel relied upon a large number of judgements to which we shall advert to to the extent necessary. 9. Section 9-D of the Act would be relevant and it reads as under:- "9-D. Relevancy of statements under certain circumstances - (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of providing, in any prosecution for an offence under this Act, the truth of the facts which it contains: (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act. The learned Bench of the Delhi High Court was pleased to hold that only in some exceptional circumstances, the right to cross examination could be taken away. There also, it appears that the cross-examination was sought at the stage of adjudication of proceedings. The challenge to the constitutional validity of the provision was upheld. 13. We may also refer to some other judgements relied upon by the learned counsel for the respondent. In Kellogg India Pvt. Ltd. V. Union of India, [2006 (193) E.L.T. 385 (Bom.), a Division Bench of the Bombay High Court was pleased to hold that the authority cannot refuse to produce documents only on the perception that the documents are not relevant. The matter was remanded back to enable the petitioner for cross examining the witnesses. Non-production of witnesses for cross-examination it was held is violative of principles of natural justice and fair play and need no judgements. We may gainfully refer to the judgement in Arya Abhushan Bhandar V. Union of India [2002 (143) E.L.T. 25 (SC). In Sunder Ispat Limited V. Commissioner of Cus. C. Ex., Hyderabad [2002 (141) E.L.T. 24 (A.P.), a learned Division Bench of the An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing examined or their statements relied upon by the Department in proceedings in adjudication. None of the judgements cited above were on the issue of making available the witnesses for cross-examination in order to reply to a show cause notice. Those judgements as already explained were in the course of adjudicating proceedings. Is, therefore, an assessee entitled to cross examine the witnesses at the stage of filing a reply to the show cause notice? A show cause notice is issued on the basis of uncontested material available before the Assessing Authority, who based thereon, has arrived at a prima facie finding whether a show cause notice ought to be issued or not. The material, thus, which has to be considered is, untested and uncorroborated. A party is called upon to reply to the said show cause notice in order to enable the Revenue to know the stand of the assessee, in the context of the material produced as to whether the proceedings should be further proceeded with. It is an opportunity to the party being proceeded against to disclose any material that the party may have to rebut the prima facie opinion. Even if, the assessee fails to reply to the show cause notice, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our opinion, the first question is answered accordingly. 18. Considering the second contention, it is true that in view of the Adjudication Manual as also the judgement in Sanghi Textile Processors (P) Ltd. (supra), the assessee is entitled to the reasonable cost incurred for getting the copies of the documents. In the instant case, there is no dispute that a soft copy containing the documents has been made available. The grievance of the respondent was that he must be given hard copies of the documents as some of the documents are ineligible as shown from the soft copies. Considering the fact that the documents have been made available in the form of a C.D., one can read the same. In our opinion, that would amount to sufficient compliance though may not be strict compliance. In case, there are any documents, which are not clear, then in that event, if the respondent applies for those documents, then the Department shall, within 15 days of the receipt of the letter in respect of those copies, make them available to the respondent herein at the Department's cost. 19. Having said so, in our opinion, the impugned order insofar as the cross-examination is concerned, is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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