TMI Blog2023 (6) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... SHIVAM MARKETING, MILAN TRANSPORT AND ASHWINBHAI PRAGJIBHAI AMBALIYA VERSUS C.C.E. S.T. -BHAVNAGAR [ 2022 (10) TMI 874 - CESTAT AHMEDABAD] considering various High Court judgments and the Supreme Court judgment, held that Non-production of witnesses for cross-examination, it was held, is violative of principles of natural justice. All these judgments in the matter of cross-examination are at the stage of adjudication. The law, therefore, at that stage, need not be elaborated, as it is the right of an assessee in the event the Revenue seeks to rely on the statements of witnesses recorded by it and whose statements are sought to be relied upon at the stage of adjudication to make available the said witnesses for cross-examination so that it could be established whether the statements recorded from the said witnesses have been voluntarily given and/or are relevant for the issue or based on personal knowledge or hearsay and the like. Matter remanded back to the original Adjudicating Authority for passing a fresh order after allowing opportunity of cross-examination of the witnesses - appeal allowed by way of remand. - EXCISE Appeal No. 12085 of 2013-DB, CUSTOMS Appeal No. 124 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down principles of natural justice. Learned Advocate further added that the statement of above mentioned persons have neither been corroborated with the documentary evidences nor cross-examination has been allowed and therefore it was wrong on the part of the Adjudicating Authority to draw conclusion without verification of the statements of above mentioned witnesses. 3. We have also heard the Shri Tara Prakash, learned Deputy Commissioner (Departmental Representative). 4. We have heard both the sides. We find that the impugned order-in-original has been passed without providing for cross-examination of the witnesses whose statements were recorded and relied upon by the authorities. We are of the view that it is necessary on the part of the Adjudicating Authority to accord opportunity of cross-examination of witnesses whose statements have been used as an evidence in the matter. It is mandatory for Adjudicating Authority to follow the principles of natural justice. The adjudication order passed without allowing cross-examination is an act of gross violation of natural justice. We find that, on this issue, this Tribunal in the case of Patidar Products vs. CCE ST, Bhavnaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne him and form an opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. Therefore, we would say that even mere recording of statement is not enough but it has to be with full conscious application of mind by the adjudicating authority that the statement is required to be admitted in the interest of justice. Indeed, without examination of the person as required under Section 9D and opinion formed as mandated under the law, the statement recorded by the Investigation Officer would not constitute the relevant and admissible evidence/material at all and has to be ignored. We have no hesitation to view that in the present matter Ld. Pr. Commissioner committed illegality in placing reliance upon the statements of persons which was recorded during investigation when his examination before the adjudicating authority in the proceedings instituted upon show cause notice was not recorded nor formation of an opinion that it requires to be admitted in the interest of justice. 4.4 The Learned Adjudicating authority relied upon a decision of the Hon‟ble Supreme Court in the case of Surjeet Singh Chhabra v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed. This order will not prevent the adjudicating authority to proceed afresh from the stage reached on April 25, 2018 or from such stage it deems appropriate. It is expected that, the adjudicating authority will keep the request of the petitioner to cross-examine the witnesses noted in its written notes of defence, in accordance with law. In Swadeshi Polytex Ltd. v. CCE, Meerut [2000 (122) E.L.T. 641 (S.C.)], it was held that if the Adjudicating Authority intends to rely upon the statement of any such persons, the Adjudicating Authority should give an opportunity of cross examination to the appellant . A similar view has been taken by the Hon ble High Court of Delhi in the case of Basudev Garg2013 (294) E.L.T. 353 (Del) (supra). The relevant portion of the order is reproduced below :- 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 same time, under certain circumstances, this right of cross-examination can be taken away. The court also observed that such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623, held that the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given an opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. A mere reading of the above said proposition clearly shows that the rules of natural justice require that a party must be given an opportunity to adduce all relevant evidence upon which he relies and further that the evidence of the opposite party should be taken in his presence by giving an opportunity of cross-examining the witnesses examined by that party. In the present case, neither any speaking order has been passed nor the respondent justified in not permitting the petitioner to cross-examine the above said eight witnesses. Thus, such attitude of the respondent shows that the petitioner was not given fair opportunity to defend th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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