TMI Blog2013 (8) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-4-2013 - Akil Kureshi And Sonia Gokani,JJ. For the Petitioner : Mr Devan Parikh Sr Advocate with Mr Nirav P Shah, Advocate. For the Respondent : Ds AFF. Not Filed (N), Mr. Gaurang H. Bhatt, Advocate ORDER (Per : Honourable Ms. Justice Sonia Gokani) Heard learned advocates for the parties for final disposal of the petition. In this petition, challenge is made to the order of the Commissioner, Central Excise, Customs Service Tax, VadodaraI [AnnexureF to the petition] dated 4th February 2013, whereby, it confirmed various duty demands alongwith penalties and interest. Against such an order, the petitioners would be entitled to approach the Central Excise, Customs Service Tax Appellate Tribunal [ Tribunal for short], however, we have chosen to entertain this petition essentially on the ground of breach of principles of natural justice. While issuing notice, in the instant case, we had particularly indicated the breach of such principles in the following manner : Learned counsel for the petitioners placed on record an affidavit dated 5.3.2013 sworn by advocate Shri Nirav P Shah who had appeared before the learned Commissioner during the course of adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the persons whose statements were recorded by the Department. The Commissioner did not decide such a request of cross examination separately, but, while passing the order in original, it denied such a request of cross examination and concluded thus; 80. So far as the assessee s request for cross examination of persons whose statements were relied upon in this case is concerned, I find that both the Show Cause Notices dated 7th October 2011 and 1st November 2011 wherein, at para 21 and para 30 respectively, it is mentioned that, In case, the noticees wish to inspect the documents relied upon in this case, they may approach the office of the Assistant Director, Directorate General of Central Excise Intelligence, Nasik Regional Unit, 2nd Floor, Mamta Anand Complex, Shivajinagar on any working day with a formal prior intimation . I find that the persons who have given their statements are working in a responsible position in the Company viz. M/s. Vulcan Industries Engineering Co. Limited, UnitIII, Survey No. 1091, SunavKasor Road, At Post Piplav, District Anand and some of them are their buyers whose statements are recorded by the Investigating Officer to know the nature and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace. Identical question came up before this Court in Special Civil Application No. 2358 of 2013. We have chosen to interfere in that petition also, on the ground of breach of principles of natural justice, while passing the final order of adjudication, by holding thus Conscious that against such order, statutory appeal before the Central Excise, Customs Service Tax Appellate Tribunal is available, we had, by recording brief reasons in our Order dated 28th February 2013, issued notice to the respondents. We are prompted to entertain writ petition directly on the ground that the petitioners had prima facie made out a case of breach of principles of natural justice at the hands of the adjudicating authority. Short grievance of the petitioners is that the impugned order was passed without disposing of the petitioners request for cross examination of certain witnesses. We notice that in the said order itself, the adjudicating authority dealt with such a request and found that in the facts of the case, cross examination was not required to be granted. However, the petitioners had, been through their legal representative, taking a firm stand that only after cross examination be permi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners prayed for cross examination and reasonably expected that the same would be granted, they cannot be expected to participate in the adjudicating proceedings upto the final stage. In other words, without dealing with and disposing of the petitioners application for cross examination, the adjudicating authority could not have finally adjudicated the issues. If he was of the opinion that the request for cross examination was not tenable, by giving reasons, he could have rejected it. We wonder what would have happened, if he was inclined to accept such a request. In such a situation, he himself could not have finally disposed of the show cause notice proceedings. In either case, the petitioners had a right to know the outcome of their application. Merely because the Commissioner was of the opinion that the petitioners had made such a request somewhat belatedly, would not permit him to, in the facts of the present case, deal with such an application only in the final order itself. Sum total of this discussion is that we are inclined to setaside the impugned order and request the adjudicating authority to pass a separate order on the petitioners application/request lett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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