TMI Blog2022 (6) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... roach of Respondent No.2 is not correct. Without cross-examining the witness it is impermissible for the Authority to say that no fresh light will be shed. It is true that alternative remedy of appeal to the Appellate Tribunal under section 127A of the Customs Act, 1962 is available to the petitioner. However, when the principles of natural justice are violated doors of this Court cannot be closed for the Petitioner on the ground of availability of alternate efficacious remedy. It is the right of every person to cross-examine the witnesses on whom reliance has been placed by the Authorities - it is deemed appropriate to set aside the impugned order and remand the mater to the Respondent No.2 for deciding afresh with the directions that respondent no.2 shall permit the Petitioner to cross-examine the witness Naishad B. Kapadia. Petition allowed by way of remand. - WRIT PETITION(L) NO.3220 OF 2020 - - - Dated:- 9-6-2022 - S.V. GANGAPURWALA M.G.SEWLIKAR, JJ. Mr. Bharat Raichandani a/w Mr.Rishabh Jain i/b UBR Legal for Petitioner . Mr. Karan Adik a/w Mr. D.B. Deshmukh, for Respondents. JUDGMENT : (PER : M.G.SEWLIKAR, J) 1] Rule. Rule made returnable forth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February 2020. Personal hearing was held on 29th April, 2020. The Petitioner had made a request for the cross examination of Naishad B Kapadia, Yusuf Madraswala, Smt. Tasneem M. Lokhandwala, Shri Karan Kothari, Iqbal Sattur and Balu Kothare Moiz Mohta. This request was turned down by the Respondent No. 2. Thereafter, vide order dated 8th May, 2020, Respondent No.2 imposed penalty of Rs 90,05,396/- on the Petitioner. This order is impugned in this petition. 5] Learned counsel Shri Raichandani submitted that the principles of natural justice have been violated by Respondent No.2 while passing the impugned order in original. He submitted that Respondent No.2 did not furnish opportunity to the Petitioner to cross-examine the witnesses. Respondent No.2 observed that cross-examination of witnesses would not shed any further light and on this ground Respondent No.2 did not permit the Petitioner to cross-examine the witnesses. It is submitted that if the principles of natural justice are violated the order passed by the Authority is a nullity in the eye of law. For this proposition, Learned counsel Mr.Raichandani placed reliance on the case of M/s. Andaman Timber Industries vs. Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich can be conveniently gone into the appeal rather than in the exercise of powers of judicial review. For all these reasons, we are satisfied that no case has been made out to entertain the petition bypassing the alternate and efficacious remedy of appeal clearly available to the petitioner. 7] Admittedly, permission to cross examine the witnesses was denied to the petitioner. It is settled principle of law that order passed without following principles of natural justice is a nullity. 8] In the case of M/s. Andaman Timber Industries vs. Commissioner of Central Excise, Kolkata-II, reported 2015 (324) ELT (641) (S.C.) (supra) the permission to cross-examine the witnesses was declined by the Adjudicating Authority. In the case of Andaman Timber Industries it is observed thus : 6. According to us, not allowing to assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of the adjudication. 10] From the order of the Respondent No.2 it is seen that Adjudicating Authority has placed reliance on the statement of Naishad B. Kapadia. The Respondent No.2 has observed in the order dated 08.05.2020 that the show cause notice had categorically and comprehensively brought out the role of all the persons including that of Shri Javed Shaikh @ Samir Shah @ Dasu Shetty who was named for his alleged involvement only by one person i.e. Shri Naishad B. Kapadia. It has further observed that in judicial proceedings before the Settlement Commission all the above five noticees including Shri Naishad B. Kapadia have accepted the charges in SCN and duty liability, interest and penalty imposed have been paid. It has further observed that the the judgment of Settlement Commission was based on same set of statements including Shri Naishad B. Kapadia and other material evidence given in show cause notice. It has further observed that the cross-examination of persons sought, at this stage would not shed any fresh light on the detailed investigation conducted by the department as even in the recent submissions during personal hearing held on 02.03.2020 his role in c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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