Customs, Excise and Gold Tribunal - Bangalore
Bala Ravi Kishore, Mr. B. Shiva Prasad ... vs The Commissioner Of Customs And Central ... on 26 June, 2006
Equivalent citations: 2006(111)ECC460, 2006ECR460(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. All these three stay applications and the appeals are taken up together as the issue is required to be remanded back to the Commissioner for de novo consideration. This is the second round of litigation. The Tribunal, in the earlier Final order No. 598 to 600/2003 dated 25.04.2003 at the time of hearing the stay application, remanded the case with a clear direction that the co-noticees should be summoned for cross-examination. The findings recorded in para 5 is reproduced herein below:
5. We have carefully considered the matter. We find that there is some force in the arguments advanced on behalf of the assessee. In the instant case, the adjudicating authority has permitted the party to cross-examine the co-noticee, but, it appears that they did not turn out on the particular date. Since the department is relying upon the statement of the co-noticees while making adverse comments against the respective parties it was the bounden duty of the adjudicating authority to bring out supporting material on record on providing due opportunity to the assessee to meet the same. We also take note of the fact that Supreme Court in the case of UOI and Ors. v. GTC Industries Ltd. reported in 2003 (55) RLT 508 (SC) observed "an adverse finding could not have been recorded against GTC by relying upon the oral submissions made by a co-noticee at the hearing without any supporting material on record, providing due opportunity to GET to meet the same" with these observations, the Supreme Court has directed concerned Collector to decide the matter afresh on the basis of any other material obtained and also placed on record for the purpose of duty granting reasonable opportunity to GTC to produce evidence in rebuttal. In the facts and circumstances of this case and following the ratio of the decision of the Apex Court referred to above, we are remanding the matter to the concerned adjudicating authority to examine the matter afresh after duly granting reasonable opportunity to the assessee to produce evidence in rebuttal and to pass an order in accordance with law. Thus these three appeals are allowed by way of remand."
The Commissioner has noted in the OIO that the witnesses have not chosen to appear for cross-examination. The Commissioner has recorded that in his opinion, the ends of justice has been met. He has proceeded to pass the order without discussing the evidence on record and on what material, he concludes the offence under the Customs Act having been brought home for imposition of penalty.
2. The learned Senior counsel, therefore, submits that the order is not a speaking order and suffers from violation of Principles of Natural Justice. He refers to the Tribunal ruling rendered in Kartarlal Puranmal Parpiyani v. CCE, Aurangabad wherein in para 4 and in para 5, the Tribunal has laid down a law that the cross-examination cannot be terminated abruptly without disclosing reasons for the same and genuine efforts made by the department to find the witnesses who did not attend the hearings. It is his submission that the order should disclose the efforts made by the department to secure the witnesses. The learned Senior counsel submits that the party should have been put to notice about the co-noticees not having turned up for cross-examination so that they are given an opportunity to secure them. He submits that this effort has not been done by the department to procure the witnesses for cross-examination and, therefore, the order is not sustainable and requires to be set aside. He further submits that in the event of such witnesses not turning up for cross examination, then their evidence cannot be relied for recording an order as held by the Tribunal in Nu-trend Business Machines (P) Ltd. v. CCE, Chennai . He further submits that the evidence on record has also not been discussed. In sum, the order is not a speaking order and violates the Principles of Natural Justice. He prays for remand of the matter with a clear direction that the earlier direction of the Tribunal recorded supra be followed in letter and spirit, including the submission made that in the absence of the co-witnesses turning up for cross-examination, then such evidence should be excluded.
3. The learned SDR pointed out that two of the appellants had not turned up for hearing on many occasions. Therefore they had forfeited their right to seek remand of the matter. He submits that the Commissioner had no other choice but to proceed to record the order in the absence of the witnesses turning up for cross-examination. He submits that there is no violation of Principles of Natural Justice.
4. On a careful consideration, we notice that the Tribunal, in the earlier order, had given a clear direction to the original authority to allow the appellant with an opportunity to cross-examine the witnesses. The efforts made by the department to secure the witnesses should have been brought out in the order and the appellant should have been given an opportunity to secure them. There is no mention in the impugned order about the efforts made by the department to secure the witnesses and also about an opportunity having been given to the appellant to secure them, after the failure of the department to get them for cross-examination. The Tribunal, in the case of Kartarlal Puranmal Parpiyani v. CCE, Aurangabad (cited supra), has laid down this principle which is required to be followed. The Commissioner has also not discussed the evidence on record. Furthermore, in terms of Nu-trend Business Machines' case (cited supra), where a witness does not turn up for cross-examination, then that portion of the evidence is not required to be relied. We find that there is a clear violation of Principles of Natural Justice. Therefore, we set aside the impugned order and remand the case to the Commissioner with a direction that the earlier direction of the Tribunal, recorded supra, should be strictly followed. The direction given in this order is that the witnesses should be secured and full efforts should be made to secure them and in the event of witnesses not turning up, the appellants should be informed about the efforts made and they be given an opportunity to get the witnesses. In case, if the witnesses fail to turn up, then that portion of the evidence cannot be relied. The Commissioner shall proceed with the remand direction and complete the proceedings within four months from today. The appellants shall be given full opportunity to defend their case. The Commissioner shall discuss the evidence on record while recording the order. The appeals are allowed by way of remand with the above directions.
(Pronounced and dictated in open Court)