TMI Blog2018 (9) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Excise Misc Application No. E/Misc/50757/2018 in Excise Appeal No. E/51867/2018 [DB] - 52948/2018 - Dated:- 13-9-2018 - Mr. C.L. Mahar, Member (Technical) And Mrs. Rachna Gupta, Member (Judicial) For the Appellant : Mr. B.L. Narasimhan, Advocate. For the Respondent : Mr. H.C. Saini, DR PER: RACHNA GUPTA Present is the Appeal against the Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Order of Hon ble High Court Rajasthan at Jodhpur in a civil writ petition No. 11179/2018 titled as M/s Miraj Products Vs. Union of India dated 14.08.2018 vide which this Tribunal has been directed to decide the Appeal of the petitioner within a period of one month from the date of the Order. It is submitted that before this Tribunal also, the application praying for early hearing of impugned Appeal were filed but they never got listed. Resultantly, the aforementioned writ petition was filed and the Appeal accordingly has to be disposed of in terms of directions therein. It is further submitted that the Order under challenge is liable to be set aside as the same has been passed in violation of principles of natural justice. The Show Cause Notice in the instant case has proposed the demand by placing reliance on various letters/ reports due to which vide letter of 20.12.2017 the appellant requested the Department for being provided with an opportunity to cross examine the authors of those letters to examine the veracity of the contents of letters/ reports. However, the permission has been denied vide the impugned order. The findings that on making further enquiry in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits by the appellant before the High Court was also a misstatement/ mis-communication as he requested for his cross examination during assessment proceedings to be allowed which otherwise was rejected by the Commissioner, Central Excise, Udaipur. Both these wrong submissions are sufficient for us to form an opinion that the appellant is in hurry of taking a decision that suits his need without following a proper procedure and rather going to the extent of making wrong statements even before the Hon ble High Court. Since the demand in the present case is a substantive one, it would not be wrong on our part to hold that the strategy of appellant is just to evade the adjudication or at least it is a time game strategy. The relief as prayed for under the impugned appeal is a discretionary relief and the Law has been settled that a person seeking aid of the Court for exercising its discretionary powers is expected to state correct facts and not to state lies before the Court as it was held by Hon ble Apex Court in the case Balbant Singh Vs. Jagdish Singh 2010 Volume-IV CCC 551 (S.C.) . From the above discussion, the impugned appeal is opined to be an abuse of process of Law. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce a document does not become a witness by the mere fact that he produces it and cannot be cross examined unless and until he is called as a witness. Section 137 of the Evidence Act defines cross examination to mean the examination of a witness by the adverse party who has already been examined in chief. The said scheme is applicable to the cases under Central Excise Act in view of Section 14 as discussed above. 10. The appellant herein is aggrieved of being denied an opportunity of cross examination. The theory of cross examination has to be examined in the perspective of its purpose. The object of cross examination is twofold firstly to weaken, qualify or destroy the case of the opponent. To impeach the accuracy, credibility and general value of the evidence given in chief, to shift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of cross examining party. Secondly, it is to establish the parties own case through his opponents own witnesses. Thus cross examination is a powerful weapon in hands of advisory. Non grant of an opportunity to cross examine a witness may even attract the doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity. The stage to summon the authors of those documents/ those letters (as mentioned in the Show Cause Notice) and to record their statement (examination in chief) has not yet come. 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. 13. 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. We draw our support from the decision of Hon ble Apex Court in the case Modula India Vs. Kamakshya Singh Deo AIR 1989 S.C. 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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