TMI Blog2012 (8) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-original dated 15th February, 1993 passed by the Commissioner, Central Excise and Customs. The assessee carried the matter in appeal before the Tribunal mainly contending that the order passed by the adjudicating authority was in breach of the principles of natural justice as the respondents had requested for cross-examination of 31 persons whose statements were relied upon in the show-cause notice, however, such cross-examination was not permitted by the adjudicating authority. The Tribunal, by its order dated 21st February, 2000 allowed the appeals and remanded the matter to the adjudicating authority for deciding the same afresh after permitting the respondents to crossexamine the witnesses. While passing the said order the Tribunal observed thus: 5. We do not propose at this point to decide as to whether the cross-examination of these persons could be claimed as of right. The Collector has in principle accepted cross examination since he has allowed some of the key witnesses like R.B. Patel, some of the persons who carried the goods to be cross-examined. It is not possible for us to accept that the appellant s legal representatives restricted the request for cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said letter was sent to the appellants therein (the respondents herein) pursuant to which, the representative of the respondents reiterated the facts narrated in the reply to the show-cause notice and prayed for time to file written submissions. The adjudicating authority observed that the respondents had not insisted for cross-examining the remaining witnesses during the course of personal hearing, although as directed by the Tribunal, they were supposed to make available the said witnesses. It was observed that since no witnesses were produced by the respondents, in view of the legal opinion of the senior standing counsel of the Gujarat High court, it was not necessary for the Department to permit the cross-examination of those witnesses which the Tribunal had stated as not being relevant and M/s. Chandan were required to bring those witnesses if they want to produce them in support of their defence. It was observed that the respondents have waived cross-examination of the witnesses they wanted to cross-examine. The adjudicating authority, accordingly, observed that there was no violation of the principles of natural justice and that sufficient opportunity was given by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -examination was not justified and in order to rebut the inference of clearance of goods without payment of duty drawn by the Department, it was up to the assessees to bring forth their witnesses. Accordingly, the respondents were asked to provide a list of persons which they wanted to cross-examine. However, during the adjudication proceedings, the learned advocate consistently insisted that all 24 witnesses involved in the case be made available. It was submitted that it is a matter of record that at the time when the matter was taken up for personal hearing, on behalf of the respondents there was no insistence upon cross-examination of the witnesses nor did they produce any witness for their defence which facts have been elaborately recorded in the order-in-original passed by the adjudicating authority. It was argued that in the aforesaid factual backdrop, the Tribunal has erred in holding that the testimony of the witnesses cannot be relied upon in adjudication of the case, if it is not possible to secure their presence and that the Commissioner should not have relied upon the oral testimony of witnesses, who were not offered for cross-examination. 6.1 It was contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k cross-examination of the said witnesses. However, in such case, it would be for the respondents to produce their witnesses. In remand, it appears that the adjudicating authority sought for the opinion of the senior standing counsel for the Department on the question as to whether the respondents were required to be permitted to cross-examine all 24 witnesses as claimed by them in the light of the above order of the Tribunal. Based upon the opinion given by the learned Senior Standing Counsel, the adjudicating authority has misconstrued the observations made by the Tribunal in paragraph 6 of its earlier order dated 21st February, 2000 wherein it was observed that in case of a particular group of persons, if the assessees wanted to examine such witnesses, it was for them to bring forth their witnesses and has applied the said observations to all the witnesses irrespective of whether they formed part of the group in respect of which the Tribunal had expressed the view that request for cross examination of such witnesses was not justified. On a plain reading of the order made by the adjudicating authority, it is apparent that on a misconstruction of the earlier order dated 21st Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE, Chandigarh 10. Thus, the Tribunal has categorically found that the directions issued in the previous order have not been complied with by the adjudicating authority. Placing reliance upon the above decisions, the Tribunal, was of the view that when such witnesses were not offered for cross-examination, their testimony cannot be placed reliance upon. Thereafter, the Tribunal has proceeded to examine the merits of the case. After taking note of the fact that the adjudicating authority had classified the demand into six groups, the Tribunal examined the demands in relation to each group independently and after recording findings of fact based upon appreciation of evidence on record, found that the demands were not justified in the absence of any evidence in support of the findings arrived at by the adjudicating authority. 11. Thus, it is apparent that the adjudicating authority had while recording adverse findings against the respondents placed reliance upon the testimony of witnesses who were not offered for cross examination. It is in these circumstances, that the Tribunal by placing reliance upon the decisions of the Supreme Court in the case of Sounds N Images (supra) a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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