TMI Blog2024 (5) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case, the impugned communication dated 25-09-2023 has conveyed the date of personal hearing fixed before the adjudicating authority in respect of the SCN dated 20.10.2022 issued by him. The notice for personal hearing issued by the Superintendent is only a communication of the date fixed by the Commissioner of Customs and is not a decision of the Superintendent himself. Normally, it is for the Commissioner to fix or re-fix the dates of personal hearing. However, the grievance of the appellant is that no decision has been taken by the Commissioner on its request for cross examination. In our considered view, for this reason, this should be construed as an appealable order for filing of appeal before the Tribunal, in terms of the above statutory provisions. The views of the DRI on the cross examination neither give it an opportunity to appeal (because DRI is not the adjudicating authority) nor allow it for cross examination. Therefore, we conclude that the appellant has correctly filed the appeal before the Tribunal against the impugned communication dated 25.09.2023 addressed by the Superintendent (Adjn.). On perusal of the letter dated 12.09.2023 and the impugned communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensic expert and officers. Further, in the said letter dated 12.09.2023, request has also been made by the officer of DRI to the adjudicating authority that the decision taken by him for allowing the cross examination of the officers and witnesses may be reviewed. 2. The appellant has assailed the impugned communication, inter-alia, on the ground that though specific request was made before the adjudicating authority for grant of permission to cross examine the witnesses, but without adherence to the said request, on the basis of the letter dated 12.09.2023 of DRI, personal hearing of the show cause notice was fixed. Thus, the appellant has contended that there is violation of the principles of natural justice and accordingly, prayed for setting aside the impugned communication dated 25.09.2023, with the direction to the adjudicating authority to grant cross examination to the appellant, as originally allowed by the adjudicating authority and conveyed to the DRI vide letter dated 29.08.2023. 3. Heard both sides and examined the case records. 4. The issues involved in this appeal for consideration by the Tribunal are as under: i) Whether the impugned communication addressed by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or order to be passed by the adjudicating authority. The views of the DRI on the cross examination neither give it an opportunity to appeal (because DRI is not the adjudicating authority) nor allow it for cross examination. Therefore, we conclude that the appellant has correctly filed the appeal before the Tribunal against the impugned communication dated 25.09.2023 addressed by the Superintendent (Adjn.). 6. We note that instead of giving any decision on the request for cross examination, along with the impugned letter dated 25.9.2023, a copy of the letter dated 12-09-2023 from the Deputy Director of DRI to the officer in the Adjudication Branch has been enclosed conveying the views of DRI on the request for cross-examination. 7. The Commissioner of Customs is the adjudicating authority with regard to the SCN issued to the appellant. As a quasi-judicial authority, the adjudicating officer is supposed to apply his independent mind in deciding the case pending before him or in connection with any other related prayers (in this case, the request for cross examination). He cannot be dictated by or adopt the views of DRI or any other departmental authority. 8. If the appellant s reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating 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 plea 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 prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7 . As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of le ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
