Custom, Excise & Service Tax Tribunal
Kudrat Corporation vs Ahmedabad on 29 July, 2020
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO.3
Customs Appeal No. 10252 of 2020
(Arising out of OIO--VIII-10-14-PR-COMMR-O-A-2019 dated 14/02/2020 passed by
Commissioner of Central Excise, Customs and Service Tax-AHMEDABAD)
Kudrat corporation .........Appellant
2ND FLOOR, MAHESHWARI CHAMBES, ABOVE RAJ BAKERY,
NEAR MAHESHWARI SOCIETY, VARACHHA ROAD
SURAT
GUJARAT
VERSUS
C.C.-AHMEDABAD .........Respondent
CUSTOM HOUSE, NEAR ALL INDIA RADIO NAVRANGPURA, AHMEDABAD, GUJARAT APPEARANCE:
Shri K.I. Vyas, Learned Advocate for the Appellant Shri Sharad Airan, Assistant Commissioner (AR) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU Final Order No. A/11131 / 2020 DATE OF HEARING: 23.07.2020 DATE OF DECISION: .2020 Ramesh Nair This appeal is directed against order dated 14/02/2020 passed by Principal Commissioner Customs, Ahmedabad whereby the request of the appellant for cross examination of the witnesses has been rejected during the adjudication proceedings in the show cause notice F. No. LDZU/856/(INT-9)(ENQ-31) 2017/1435-1440 dated 03/07/2019.
2. Shri K.I. Vyas, Learned Counsel appearing on behalf of the appellants submits that the main reason for denial of cross examination given by the Principal Commissioner is that the appellant intends to delay the adjudication proceeding. He submits that the Principal Commissioner apprehended that cross examination shall not bring any new facts other than the facts earlier been recorded in the proceedings and in the technical opinion. He submits that the appellant needs to cross examine, the witness for their defence, therefore, the Principal Commissioner cannot presume of what will be the outcome of the cross examination. He submits
2|Page C/10252/2020 that all the evidences either in the form of letters, technical opinion, statements, are recorded from the persons whose cross examination was sought for. Therefore, two bring out the truth and correct position on record it is necessary to cross examine the witnesses. He heavily relies upon the judgment of Hon'ble High Court of Gujarat dated 29/01/2020 in the case of Gujarat Narmada Valley v/s Union of India wherein he pointed out that in the identical case, the cross examination has been granted by the Hon'ble High Court. He further submits that the contention of the Principal Commissioner, that the appellant is delaying adjudication proceedings as incorrect for the reason that the Adjudicating Authority has allowed the cross examination in the same case on the request of other co-noticees. Therefore, the Adjudicating Authority cannot take two stands in the same case.
3. Shri Sharad Airan, Learned Assistant Commissioner (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that there are ample of evidences which have been relied upon in the Show Cause Notice and all the relied upon documents were provided to the appellant. Therefore, Learned Principal Commissioner has rightly rejected the request for cross examination of the witnesses. He placed reliance on the following judgments:
1) Spenta Multimedia Pvt. Ltd. v/s Commissioner of Customs Nhava Sheva-II 2020 (371) E.L.T. 814 (Tri-Mumbai)
2) Dharampal Satyapal Ltd.v/s Dy. Commissioner of C.Ex., Guwahati 2015 (320) E.L.T.3 (S.C.)
3) Divine Impex v/s Commissioner of Customs (E), Nhava Sheva 2019 (369) E.L.T.858 (Tri- Mumbai)
4) Paragon Steels (P) Ltd. v/s Commissioner of C.Ex., Cus & S.T. Calicut 2018 (15) G.S.T.L. 298 (Tri- Bang.)
5) Shridhar Paints Co. P. Ltd. v/s Commr. Of Cus. & C. Ex. Hyderabad-III 2006 (198) E.L.T. 514 (Tri-Bang.)
6) N.S. Mahesh v/s Commissioner of Customs, Cochin, 2016 (331) E.L.T. 402 (Ker.)
4. We have heard both sides and perused the records. We find that the Adjudicating Authority has given precisely the reasoning for the rejection of the request of the cross examination of the witnesses in para 6 of the order which is reproduced below:
"6. The request for cross examination of SIO who recorded the statements of the witnesses and who obtained technical opinion on the subject issue, I find that the relied upon documents have already been
3|Page C/10252/2020 provided alongwith Show Cause Notice and the cross examination of the SIO shall not bring out any new facts other than the facts which have already been recorded in the statements and in the technical opinions. The request for cross examination of 11 persons is not maintainable as nothing new is likely to come out and will only delay adjudication proceedings. In this regard, I refer to the judgment of Hon'ble High Court of Kerala in the case of N.S. Mahesh reported as 2016 (331) ELT 402 (Ker.) wherein the Hon'ble Court upheld the denial of cross examination of the departmental officers."
From the above finding, the Adjudicating Authority has stated that the request for cross examination of 11 persons is not maintainable as nothing new is likely to come out and will only delay adjudication proceedings. We do not agree with the Adjudicating Authority that only due to likelihood of delay in adjudicating proceeding, the cross examination can be denied. There is no shortcut in the adjudication process. It is a fact on record that except SIO, all other persons have either given the statements under section 108 of the Customs Act, 1962 or taken their stand by way of letters. Shri Ashok Prasad and Shri Bipin Kumar have admittedly given the technical opinions which have been taken on record as evidence in the Show Cause Notice. Therefore, these evidences were used against the appellant. During the adjudication proceeding, any evidence can be admitted only when the witness is cross examined under section 138 B which is reproduced below:
SECTION 138B. Relevancy of statements under certain circumstances. -- (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, -
(a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or
(b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice.
2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court.
From the plain reading of the above section, particularly, clause (b) of sub section 1 of section 138(b), it is clear that the statement made and signed by person before the Custom Officer can be admitted as evidence when the person
4|Page C/10252/2020 who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. In the above section, no exception is provided or any discretion is provided for the Adjudicating Authority to allow or not to allow the cross examination. Particularly, in the present case, when the appellant have vehemently requested the cross examination of the witnesses. The Adjudicating Authority cannot have his own assumption and presumption that whether anything will come out from the process of cross examination. It is up to the defendant that whether the cross examination will help for his defence. The cross examination is a vital part of principles of natural justice. Therefore, we are of the view that the appellant should be allowed cross examination, the witnesses except the SIO. The SIO is part of the investigation and the Show Cause Notice has relied upon various statements, letters and opinions. Therefore, the cross of SIO is unwarranted. As per our above discussion, we hold that the learned Principal Commissioner being adjudicating authority shall grant cross examination of witnesses as requested by the appellant. Accordingly, the appeal is allowed in the above terms.
(Pronounced in the open court on 29.07.2020) (RAMESH NAIR) MEMBER (JUDICIAL) (RAJU) MEMBER (TECHNICAL) Diksha