TMI Blog2022 (12) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, specifically when there is no statement of the appellant which may from any stretch of imagination be considered as a confession of the appellant, the right to cross-examination was a basic right rather originating out of principles of natural justice. There is nothing on record to indicate that any prejudice would be caused to the department by providing appellant a right to cross-examination. There is not retraction by any of the the three witnesses whose cross-examination has been prayed for. In the given circumstances and keeping in view the mandate of the statute as has been directed by the Hon ble Apex Court to be strictly followed in all adjudications, where there appears the violation of the right to natural justice, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.03.2015 was served upon the appellant proposing the recovery of reassessed customs duty along with the interest. Penalty was also proposed to be imposed under Section 112 (a) and 112 (b) read with 114(A) Customs Act, 1962. The said proposal was initially confirmed vide Order-in-Original No. 12/2017 dated 29.08.2017. However, the Order-in-Original was earlier challenged before this Tribunal vide Final Order No. 52838/2018 dated 10.08.2018. The matter was remanded back to be decided afresh, after observing that the penalty of Rs.3.2 Crores imposed on the appellant is not justified as the duty amount involved was only Rs.67 Lakhs. Pursuant to said order that the Order-in-Original dated 08/09.02.2021 has been passed in this appeal. Being agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. In fact his request to cross-examine three of them was rejected vide order No. 6/ADJ/08/2015 dated 01.09.2020. Learned Counsel also bring to the notice that an appeal was filed by the appellant against the said order also but during the pendency of the said appeal the original adjudicating authority had passed the impugned Order-in-Original. The appellant was left with no other option but to withdraw the said appeal. In the given circumstances, learned Counsel has prayed for the matter to be remanded back with the permission to the appellant to cross-examine three of the witnesses. 4. Learned DR at this stage has expressed no objection for the matter to be remanded back, however, for the limited purpose of cross-examination of thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an a proceeding before a court, as they apply in relation to a proceeding before a court. 6. The above provision is pari meteria Section 9D of Central Excise Act, 1944. Hon ble Apex Court in a land mark decision in the case of J K Cigarettes Ltd. Vs. Collector of Central Excise reported in 2009 (242) E.L.T. 189 (Del.) which has been relied upon by the Hon ble High Court of Delhi in the case of Basudev Garg reported as 2013 (294) E.L.T. 353 (Del.) has held as follows: 14. The Division Bench also observed that though it cannot be denied that the right of cross-examination in any quasi judicial proceeding is a valuable right given to the accused/Noticee, as these proceedings may have adverse consequences to the accused, at the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exercise of powers. The aggrieved party is not remediless. This order/opinion formed by the quasi judicial authority is subject to judicial review by the appellate authority. The aggrieved party can always challenge that in a particular case invocation of such a provision was not warranted. 7. Reverting to the facts of the present case, apparently and admittedly, the adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Naresh Kumar Jha, Shri Prakash Chand Sharma and Shri Ashok Sharma be once again summoned and an opportunity be afforded to the appellant to cross-examine three of the said witnesses. The adjudicating authority is required to adjudicate the impugned show cause notice afresh after duly considering not only the statements but the outcome of the cross-examination that shall follow on record. The departmental adjudicating authority is required to conclude the proceedings within a period of 4 months from the date of receipt of copy of this order. 9. In view of the entire above discussion the prayer of the miscellaneous application is held to have become in fructuous. Application stands disposed of accordingly. Appeal stands allowed by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
