TaxTMI 
TaxTMI 
2021 (12) TMI 180
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....rdships may be pleased to call for records and proceedings before respondent no.2, the Commissioner of CGST and Service Tax, Vadodara-II Commissionerate at Vadodara to verify the noting of directions on the file; (AA) That Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ in the nature of certiorari, direction or order, quashing and setting aside the Order in Original No. VADEXCUS- 002-COM-015-20-21 dated 29.10.2020 passed by respondent no.2; (B) That Your Lordships may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, direction or order, quashing and setting aside the decision of the respondent no.2 conveyed vide Letter 28.08.2019 issued in F.No. order/letter dated 28.08.2019 (Annexure-A), and be further pleased to direct respondent no.2, to allow the petitioners to cross examine the persons whose statements are taken but not relied upon in the Show Cause Notice; (C) That Your Lordships may be pleased to issue a writ of prohibition or any other appropriate writ, direction or order, completely and permanently prohibiting the 2nd respondent herein from conducting and concluding adjudication ....
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....ainst the petitioner in the show cause notice, it sought the cross-examination of those persons who had tendered the statements on 23.07.2018 wherein the request has been made on the part of the petitioner that the applicant has not recorded the transactions with respect to the sales and purchase of the raw-materials and finished goods in the books of accounts and thereby allegedly manufactured and cleared the goods without the payment of duty. According to the applicant, the allegations of evasion of duty on clearance of goods without payment of duty is unsustainable and is incorrect. 3.4. He also has further urged that for putting forth the defence of the applicant, the cross-examination of the deponents whose statements have been recorded and relied upon in the show cause notice be permitted. It has further urged that the application be heard before the adjudication of the show cause notice and appropriate order be passed, for which, reliance is placed on the decision of this Court in case of Mahek Glazes Pvt.Ltd. vs. Union Of India, reported in 2014 (300) E.L.T. 25(Guj.). Along with this Annexure-A which consists of the list of the persons whose statements had been recorded be....
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....ri. Del)] (iv) Subhnen Decor P. Ltd vs. Commissioner of Central Exicse, Vapi [2010 (251) E.L.T. 105 (Tri. Ahmd)] (v) Kishore Bhikansingh Rajput vs. Preeti Kishore Rajput [2007 (3) Bom.C.R.279] (vi) D.A.Rao vs. Commissioner of Central Exicse, Mumbai-I [2017 (347) E.L.T. 419 (Bom.)] (vii) Commr. Of Cus. (General) vs. Sun Clearing & Forwarding Services Pvt. Ltd. [2016 (332) E.L.T. 453 (Bom.)] (viii) Kellogg India Pvt. Ltd vs Union of India [2006 (193) E.L.T. 385 (Bom.)] (ix) Savino Micron (India) Pvt. Ltd. vs. Union of India [2017 (351) E.L.T. 250 (Guj.)] 5. We have also heard extensively learned Standing Counsel Mr. Utkarsh Sharma who has taken us through the decisions, the provisions as also the order impugned to urge that no interference is desirable. According to him, the order impugned is passed in accordance with law. He, however, has acted with extreme fairness so far as the order-in-original which has been passed on 29.10.2020 by urging the Court to pass necessary order in that respect without defending the act of either learned Standing Counsel who was engaged in this matter before he was handed over the brief or of the officer who passed the order. 6. Firstly a....
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.... defence witnesses against whom the adjudicatory proceedings is conducted who should be given not only the opportunity of cross-examination of the witness but also that those who have been denied such opportunity can always complain of the violation of principle of natural justice which is reviewable in the action of the judicial review. The Court also permitted the opportunity of examination of the defence witnesses. 8. This Court in case of Savino Micron (India) Pvt. Ltd. vs. Union of India [2017 (351) E.L.T. 250 (Guj.)] was considering the assessee's request for an opportunity of cross-examination of Director (Revenue Laboratories), under whose signature CRCL report had been forwarded and opportunity of personal hearing in connection with the said report was denied. While confirming the demand, the Court held this denial to be a denial of opportunity and denial of opportunity relatable to the breach of principle of natural justice. "(6) The question of maintainability of the petition being a jurisdictional issue is required to be addressed at the outset. In this regard it may be apposite to refer to the decision of this court in Manek Chemicals Pvt. Ltd.v. Union of India, 201....
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....sues. If he was of the opinion that the request for cross-examination was not tenable, by giving reasons, he could have rejected it. We wonder what would have happened, if he was inclined to accept such a request. In such a situation, he himself could not have finally disposed of the show cause notice proceedings. In either case, the petitioners had a right to know the outcome of their application. 7. Merely because the Commissioner was of the opinion that the petitioners had made such a request somewhat belatedly, would not permit him to, in the facts of the present case, deal with such an application only in the final order itself. Sum total of this discussion is that we are inclined to set aside the impugned order and request the adjudicating authority to pass a separate order on the petitioners' application/ request letter for granting cross-examination of the named witnesses. We are conscious that the Commissioner has already decided such an issue, however, since we are quashing the order, this part of the order would also not survive and hence, the requirement of a fresh order. We are informed that the same officer continues to hold the office of the Commissioner of Custom....
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....ould be held to be indefeasible right." In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice. 27. In K.L. Tripathi v. SBI, this Court held that, in order to sustain a complaint of the violation of the principles of natural justice on the ground of absence of opportunity of cross-examination, it must be established that some prejudice has been caused to the appellant by the procedure followed. A party, who does not want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross-examination was provided to him, specially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy and Channabasappa Basappa Happali v. State of Mysore.) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill, this Court held: "9. In order to establish that the cross-examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of....
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....uld the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice." 19. On a conspectus of the above decisions, it clearly emerges that cross-examination is an integral part and parcel of the principles of natural justice. In State of U.P. v. Mohd. Nooh, AIR 1958 SCR 86, the Supreme Court after referring to various authorities in this regard, has held that if an inferior Court or Tribunal at first instance acts wholly without jurisdiction or patently in excess of jurisdiction, or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice, and all accepted rules or procedure and which offends the superior Court's sense of fair play, the superior Court may quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or the Tribunal at first instance, even if an appeal to....
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....t relate only to the breach of principles of natural justice and hence, the availability of an alternative statutory remedy will not act as a bar in exercising writ jurisdiction under Article 226 of the Constitution of India. (12) In the light of the fact that the adjudicating authority has placed reliance upon the report of the CRCL in respect of which the petitioner was not granted any opportunity of hearing, it is manifest that there is a breach of principles of natural justice warranting interference by this court. Additionally, the petitioner has set out several grounds in the communication dated 10.02.2016 stating the reasons as to why it seeks to cross-examine the signatory of the CRCL report. However, the request has fallen on deaf ears. It is settled legal position that the right to cross-examine ought or to have opportunity to effectively exercise that right is an essential part of principles of natural justice. Under the circumstances, the adjudicating authority was required to give fair opportunity to the petitioner to not only deal with the report of the CRCL, which was received subsequently but also to give an opportunity to the petitioner to cross-examine the Dire....
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.... they need to be brought as the defence witnesses. Here some of the witnesses are those whose statements were recorded before the show cause notice had been issued and for the reasons suited best to the respondents, quite a few of them were not included in the show cause notice. It would be always the right of the party against whom the show cause notice is issued to call them as defence witnesses as it is the right given to the party which faces the adjudication proceedings. 10. However, the question here is totally wholly different. The request on the part of the petitioner is for cross-examination of those witnesses whose statements had been recorded and not relied upon in the show cause notice. In that eventuality, if the authority concerned has chosen not to examine them as prosecution witnesses and those who are already relied upon by the Revenue when have already been cross-examined, defence cannot request to cross-examine witnesses whose statements have not been relied upon by the Revenue without examining them as defence witnesses. No interference in that count would be necessary. 11. We noticed that the emphasis before this Court was also on the subsequent submissions m....
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....by the next date. 4. At the joint request, S.O. to 18TH JANUARY, 2021." 12.1. The order passed on 23.03.2021 is as follows: - "1. Urgency is made out by learned advocates appearing for the petitioner. According to them, the order in original has been passed despite the assurance given by the counsel to the Court. 2. Today since it is not convenient to the empanelled advocate Mr. Utkarsh Sharma, matter is being posted on 30.03.2021, when it shall be proceeded with." 13. The Court needed to take a note of the fact that the order-in-original came to be passed despite the specific assurance given by the then learned Standing Counsel. It is also reflected in the order-in-original. We had directed the affidavit to be filed however, that has not come on record. We have chosen not to stretch this issue, but, the then learned Standing Counsel was expected to guide the officer concerned dispassionately and as otherwise needed as Court Officer. The order-in-original is passed in complete disregard to the adjournment sought by the respondent and assurance given to the Court even while urgency was made. It would be worthwhile to reproduce the relevant paragraph 25.2 from the order-i....