TMI Blog1990 (8) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... cs. It failed to give the actual nature and composition of the fabrics in the classification list filed by it and thereby misdeclared the goods. It failed to determine the correct liability of duty on the said fabrics and removed the goods without payment of excise duty leviable in respect of such goods. It had claimed and availed wrongly the benefit of Notification No. 252/82, dated November 8, 1982 as amended by clearing and processing man-made fabrics (subject to processes like bleaching, dyeing, printing etc.) as if they were subjected to processes like padding and calendering etc. 2. The petitioner was asked by the Collector of Central Excise, Hyderabad, the respondent herein to show cause why the additional duties of excise amounting to Rs. 5,11,17,706.25 should not be levied and collected under Section 11(A) of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act), the plants, machinery and the buildings utilised for the manufacture and clearance of the fabrics as well as the goods seized at the factory premises on May 11, 1989 should not be confiscated and penalty should not be imposed on it. 3. On July 28, 1989 the petitioner requested the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 60 of its letter dated April 2, 1990, apart from making a request for supply of copies of some documents, return of 55 lot cards in original and testing of 1700 "samples folders" seized from its premises on May 11, 1989. The Collector overruled the objection relating to the presence of the officers at the time of cross-examination of the witnesses, stating that their assistance was necessary and their participation in the investigation was-neither relevant nor material. He, however, granted permission to the petitioner to cross-examine panch witnesses and officers connected with the search of any two premises of its choice from where samples had been drawn. However, the request to cross-examine about 20 merchant manufacturers had been rejected on the ground that they were "co-noticees". The enquiry was posted to June 13, 1990. On that date, the petitioner sought review of the order dated May 15, 1990 passed by the respondent herein reiterating its request for permission to cross-examine all the "noticees", persons who were present at the time of drawal of samples and all range officers. It also made a further request that copies of replies filed by "co-noticees" be made availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders on July 17, 1990 posting the enquiry to July 18, 1990. On that date, the learned Counsel for the petitioner reiterated that the petitioner had a right to fix the sequence in which it wanted to cross-examine the witnesses and the presence of the Investigating Officers in the enquiry would cause prejudice to the petitioner inasmuch as the statements of the persons who were to be cross-examined had been recorded by the Investigating Officers under intimidation, duress, threat and coercion and it would be difficult to elicit truth from them in cross-examination in the presence of the Investigating Officers. Both those objections were again over-ruled by the Collector by his order dated July 18, 1990. He held that the department had a right to be assisted by the Investigating Officers and unless there was specific evidence that a particular witness had been intimidated or coerced to make a statement, it could not be presumed that the presence of the Investigating Officers would intimidate or scare the witnesses. He further made it clear that in a quasi judicial enquiry which he was holding under the provisions of the Act, it was not necessary to follow the sequence in which the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siders to be necessary and proper and for that purpose to seek cross-examination of the witnesses in the sequence it considers necessary. 9. There can be no doubt that the enquiry contemplated under the provisions of the Central Excises and Salt Act, 1944 and the rules made there under is quasi judicial in nature. However, no specific procedure is prescribed either under the Act or the rules for conducting the enquiry. Even the provisions of the Indian Evidence Act, Criminal Procedure Code and Civil Procedure Code are not applicable. 10. Section 135 of the Evidence Act deals with the order of production and examination of witnesses. It reads as follows: "The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law by the discretion of the Court." In Jalat Kumar Darsi v. Visveswara Dutt - ILR 39 Calcutta 245, Woodroffe, J. held that the Court had always the power, to regulate the order in which witnesses were produced either in a civil or criminal proceeding, under Section 135 of the Evidence Act. Justice Chandrasekhara Sastry poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 11. The respondent herein is a quasi judicial authority constituted under the provisions of the Act. The provisions of the Act and the rules made there under do not prescribe any procedure for regulating the order in which the witnesses are to be produced or examined before the respondent. But, the proceedings pending before the respondent being quasi judicial in nature, it has to be ensured that the proceedings are conducted in accordance with the principles of natural justice and fair play. In the absence of any provision, the respondent has to exercise his discretion in regulating the order of production and examination of witnesses in such a manner as to ensure that the proceedings are conducted in a fair and proper manner by conforming to the principles of natural justice. It would be pertinent to note that even in a trial conducted by a court of law following the procedure laid down under the Criminal Procedure Code, the Investigating Officers are not prohibited from being present in the court when the witnesses for the prosecution are being examined or cross-examined unless the court is of the opinion that the presence of an Investigating Officer is likely to intimidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution of India by denying the petitioner the right to equal treatment. In support of his contention, the learned Counsel has placed strong reliance on what Justice Vivian Bose had said in The State of West Bengal v. Anwar Ali - AIR 1952 S.C. 75, the relevant portion of which reads as follows: "...We find men accused of heinous crimes called upon to answer for their lives and liberties. We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends; whether this be done in good faith, whether it be done for the convenience of government; whether the process can be scientifically classified and labelled or whether it is an experiment in speedier trials made for the good of society at large. It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above we do not find force in any one of the contentions advanced on behalf of the petitioner and they are accordingly rejected. 17. We, however, give the following two directions to the respondent. (1) In the case of cross-examination of any witness, if a plea is raised on behalf of the petitioner that the presence of any one or all of the Investigating Officers is likely to intimidate or scare the witness, the respondent shall consider the same having regard to the material produced by the petitioner and decide whether the Investigating Officers shall be asked to keep out of the enquiry so long as that witness was examined. (2) Regarding the sequence in which the petitioner wants to cross-examine the witnesses, the respondent shall permit the petitioner to follow its own order of preference of cross-examining the witnesses who have been summoned and are present to give evidence on a particular day. If the petitioner files any application for recalling any witness for the purpose of further cross-examination, having regard to the evidence given by the other witnesses subsequent to the cross-examination of that witness, the same shall be considered on merits and appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
