TMI Blog2017 (3) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... rakash Shah Mr. Jas Sanghavi i/by M/s. PDS Legal for the Petitioners. Mr. Swapnil Bangur with Mr. Sham Walve for the Respondents. ORAL JUDGMENT (Per Shri S.C. DHARMADHIKARI, J.): 1. Rule. The respondents waive service. By consent, rule is made returnable forthwith and the petition is taken up for hearing and final disposal. 2. The petitioners are a company incorporated under the Companies Act, 1956. They are engaged, inter alia, in the manufacture of products which are styled as ecofriendly products. The description of the same is provided in para 4.1 of the petition. Then it is stated that their final products in two forms, namely, liquid form and powder/granule form are applied for seed treatment and/or soil application and/or foliage application. The petitioners have described how these final products are obtained. We are least concerned with that for the simple reason that the petitioners' offices were visited by the Preventive Cell/Wing of the Central Excise, Nashik-I Commissionerate, Nashik. During the course of the search, the Revenue discovered that these are excisable goods. The petitioners manufacture them and, therefore, they are liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court should not interfere in the action in its writ jurisdiction for no order against the interest of the petitioners has been passed. In the event any such order is passed, then, the petitioners have adequate remedies and particularly of appeals. In that, they can urge and raise the ground of prejudice by denial of the opportunity to cross examine the witnesses. 8. We have heard both sides at some length. There are two Judgments which are relied upon by the Revenue's counsel to oppose this petition. They are in the matters of Telestar Travels Pvt. Ltd. Vs. Special Director of Enforcement and Patel Engineering Ltd. Vs. Union of India, reported respectively in 2013 (289) E.L.T. 3 (S.C.) and 2014 (307) E.L.T. 862 (Bom). 9. From the head note itself it is apparent that in the case of Telestar Travels (supra) , the Hon'ble Supreme Court opined that right of cross examination available under the Evidence Act, 1872 cannot be claimed as of right. The cross examination may be permitted to test the veracity of the statements which have been made. The proceedings were under the Foreign Exchange Regulation Act, 1973 (for short, FERA ). The Rule 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity requires to be given for the cross examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross examination by the petitioner. The context in which the observations were made are set out while enumerating the facts. The appellant Telestar Travels carries on a travel agency business and is specialised in booking of tickets fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of natural justice. The Judgment and Order in the case of Patel Engineering, therefore, merely restates the settled principles. It is their application to the given facts and circumstances which has to be borne in mind. 12. In the present case, we do not think that we are allowing the petitioners a liberty to prolong or delay the adjudication proceedings. The petitioners in their communication dated 23.11.2016, copy of which is at page 108 of the paper book, expressly brought to the notice of the authorities that in the show cause notice the statements of Dinesh J. Gunjal, Accountant of Nigal Krushi Seva Kendra, Nashik, Dilip Sampat Dhikale and Aditya Keshavsingh Pardeshi are referred and relied upon. The justification for cross examination of each of these persons is provided by the petitioners. They state that Dinesh Gunjal is an Accountant but he has given the statement as if he is a technical person and without knowing the chemical composition and applications. He has deposed that the products BioPower and BioForce are growth stimulants/regulators and that is why his technical capabilities have to be adjudged. His cross examination, therefore, is crucial. Dilip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is stated that both the employees of the petitioners have expressed their disagreement with the views of the three persons. 14. We do not think that such an approach, apart from being unhealthy and non conducive to fair and impartial adjudication sub-serves the cause of justice. The cross examination of these persons is not a proper method to belie their expertise and it is sought apparently for inconveniencing and making them uncomfortable for giving a version to help the investigation in the matter and for delaying the adjudication proceedings is one of the reasons assigned in the impugned communication. We are shocked and surprised that a Commissioner of Central Excise, Customs and Service Tax, Nashik-I Commissionerate, Nashik holds such a view. We do not see how a personal embarrassment is caused merely because witnesses are sought to be cross examined on an advisory. There is nothing by which the proceedings partake the character of sullying his image and harming his reputation. It is in the course of the proceedings and to falsify his version that answers are elicited. Depending upon the response to the questions the assessee can modulate and modify his stand and arg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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