TMI Blog2018 (10) TMI 1650X X X X Extracts X X X X X X X X Extracts X X X X ..... icating process against the appellant or not. It can never be premature because the statements are already in the file and in case the statements are against the appellant, implicating or accusing him, undoubtedly, it would be used against him. Such statements will definitely not be ignored by the Adjudicatory Authority. The respondents are given an opportunity to the appellant to cross-examine the witnesses, who have given statements against the appellant - appeal allowed. - W.A. No. 1841 of 2018 - - - Dated:- 30-10-2018 - K. Vinod Chandran and Ashok Menon, JJ. For the Appellant : C.K. Karunakaran For the Respondents : Sreelal Warner, C.G.S.C. JUDGMENT Ashok Menon, J. 1. The appellant is a firm engaged in the business of importing and processing of betel nuts. The appellant filed W.P.(C) No. 480/2018 to quash, Ext. P5 proceedings of the Commissioner of Customs (Adjudicating Authority) disallowing the request made by the appellant vide Exts. P3 and P4 to cross-examine some witnesses, whose statements have been relied on as material against the firm in a proceeding by the Commissioner of Customs against the appellant for which a show cause notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata (2016 (1) KLT OnLine 2772 (SC) : (2016) 15 SCC 785), held that the Adjudicating Authority in its discretion shall permit examination of witnesses, but the question as to whether in a given case, the decision declining permission to adduce evidence or cross-examine persons is correct can be considered only after the conclusion of proceedings, having regard the prejudice, if any, caused to the party on account of the same. 4. The petitioner in W.P.(C) No. 480/2018 is aggrieved by the judgment and is before us submitting that the learned Single Judge failed to consider the ratio contained in Andaman Timber Industries in the proper perspective and that the denial of opportunity to cross-examine the witnesses on the basis of which proceedings were initiated against the firm is illegal. 5. We heard the learned Counsel appearing for the petitioner and the learned Standing Counsel for the Central Board of Excise Customs. 6. The learned Single Judge had drawn a distinction in the case in hand from the facts in Andaman Timber Industries (supra) in so far as the cited decision being rendered after culmination of the proceedings by issuance of an order, which was held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the adjudicating authority. As far as the Tribunal is concerned, we find that rejection of this pea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory remain static. It was not for the Tribunal to have guesswork as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 8. The learned Central Government Standing Counsel would canvass the proposition that; whether the rejection of permission to cross-examine the witness resulted in any prejudice to the appellant could only be decided after the adjudication order is made by the authority, and then, the propriety of relying upon statements of witnesses by the adjudicating authority, without giving opportunity to cross-examine the witnesses, has to be examined. Only in such circumstances, could it be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some other case it may not. The procedure required to be adopted forgiving an opportunity to a person to be heard must necessarily depend on the facts and circumstances of each case. The learned CGSC referring to the above decision would argue that giving an opportunity to a person to be heard or cross-examined must necessarily depend upon the facts and circumstances of each case and in the case in hand, it is premature to grant permission to the appellant to cross-examine the witnesses, whose statements were recorded during the course of investigation. 10. In M/s. Kanungo and Co. v. Collector of Customs, Calcutta (1973 KHC 589 : (1973) 2 SCC 438), the Hon'ble Supreme Court held thus: 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not grant opportunity to the person accused to cross-examine those witnesses to discredit their testimony. The Hon'ble Supreme Court noticed that the accused had specifically sought cross-examination. The authority having mentioned the fact of such a prayer, refused it but had not dealt with the plea raised by the assessee of the prejudice caused to the assessee on that ground. 13. The objection raised by the Department is that it is premature to decide whether cross-examination of the witnesses, who had given statements during the stage of investigation, is proper or not. We are surprised at the contention raised, in these days of increasing litigation, long pendency of matters, the drive for speedy disposal and the need, which always existed, to bring to book delinquents. If a procedural infirmity is brought to the notice of the Constitutional Court, the prayer to rectify it cannot wait till a prejudice is found as against the final determination, which would result in setting aside the final order. At that stage; given the time within which finality is reached in our system, the entire proceedings would be rendered a nullity, for reason alone of the deponents in the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statements have to be tested with the other materials available and the adjudicating authority cannot now come to a conclusion as to whether i.e., statements would be relied on or not. It would be puerile to contend that if eventually the order is set aside, the department would suffer that order; as in cases where personal rights alone are involved. Here there is a statutory infringement alleged and the consequences cannot be absolved of, on mere admission or acquiescence. Hence, we find that it is in public interest and the interest of justice to permit the appellant to cross-examine the two witnesses, whose statements have been recorded by the Adjudicatory Authority. The finding of the learned Single Judge relegating the propriety of the Adjudicatory Authority's decision to a later stage, is, in our opinion, not appropriate. Hence, the impugned judgment is set aside and the appeal is allowed directing the respondents to give an opportunity to the appellant to cross-examine the witnesses, who have given statements against the appellant. There is a contention raised by the Department, that the appellant has not even filed a detailed objection and has reserved their right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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