TMI Blog2016 (3) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... right would prejudice the Petitioner since the said statements are adverse to the Petitioner. Therefore, the AA order declining the request of the petitioner for cross-examination of persons is set aside. - Decided in favour of appellant - W. P. (C) 1697/2016 - - - Dated:- 26-2-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mrs. Anjali J. Manish and Mr. Priyadarshi Manish, Advocates For the Respondent : Ms. Sonia Sharma, Senior Standing Counsel ORDER Dr. S. Muralidhar, J. CM No.7257/2016 (exemption) 1. Allowed subject to all just exceptions. 2. The application is disposed of. WP (C) 1697/2016 CM No. 7256/2016 (Stay) 3. Notice. Ms. Sonia Sharma, Advocate, accepts notice for the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, which have been relied upon by the AA in the course of the adjudication proceedings. The specific case of the DRI is that the said partners of the importer acted in collusion with the Petitioner in making the illegal imports. Therefore, their statements are a critical piece of evidence being relied upon by the Respondent in support of the SCN. 8. One of the co-noticees of the SCN, Mr. Pawan Kumar Ralli, filed WP (C) No.777/2015 in this Court, in which an order was passed by the Court on 25th January 2016, by the consent of the parties, which included the Principal Commissioner of the Customs (Import), directing that the SCN dated 1st November 2014 should be adjudicated within a period of six weeks from that date. 9. On 9th February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Ms. Sharma on the decision of the learned Single Judge of this Court in Shahid Balwa v. The Directorate of Enforcement (199) 2013 DLT 380 and the decision of the Supreme Court in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (2003)8 SCC 449. 12. The above submissions have been considered. At the outset it requires to be noted that the decision in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (supra) arose in the context of the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act). The question was whether Section 42 (2) of the NDPS Act would apply to a search and seizure conducted by a Gazetted Officer under Sections 41 (2) and (3) of the NDPS Act. That decision does not ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall so far as may be apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court. 14. The above p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Act, 1944. The circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a 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 and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to cross- examine the persons whose statements are being relied upon even in quasi- judicial proceedings. The Division Bench also observed as under:- 29. Thus, when we examine the provision as to whether the provision confers unguided powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 9D of the CE Act. 17. In the present case, it is an admitted fact that the Respondent Department is placing considerable reliance on the statements of Mr. Shyam Lal and Ms. Preeti, the partners of the importer, in support of the case made out in the SCN. The impugned order of the AA does not indicate that any prejudice would be caused to the Department by providing the Petitioner the right of cross-examination. On the other hand the denial of such right would prejudice the Petitioner since the said statements are adverse to the Petitioner. In the circumstances, the denial of the Petitioner's right of cross-examination is held contrary to the law explained in Basudev Garg (supra). 18. Consequently, the Court sets aside the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
