Gujarat High Court
Deepak Chandrakant Mulchandani vs Union Of India on 11 February, 2020
Author: A. P. Thaker
Bench: S.R.Brahmbhatt, A. P. Thaker
C/SCA/13225/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13225 of 2019
================================================================
DEEPAK CHANDRAKANT MULCHANDANI
Versus
UNION OF INDIA
================================================================
Appearance:
MR HASIT DAVE with HIRAK P GANGULY(8002) for the Petitioner(s) No.
1,2,3,4
MR ANKIT SHAH(6371) for the Respondent(s) No. 1,2
================================================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 11/02/2020
ORAL ORDER
(PER : HONOURABLE DR.JUSTICE A. P. THAKER)
1. Heard learned counsel for the parties. Rule. The issue involved in this matter is in narrow compass, therefore, at the joint request of both the sides Rule is fixed forthwith.
2. Learned counsel for the petitioner submitted that non- granting of opportunity for cross-examination of the witnesses, whose statements are relied upon by the authority, is against the principles of natural justice and vitiates the order impugned. He also submitted that in view of umpteen number of judgments to the effect that non-granting of opportunity for cross-examination vitiates the order, present petition may be disposed of by remanding the matter to the authority for cross- examination.
Page 1 of 5 Downloaded on : Thu Feb 13 20:29:47 IST 2020 C/SCA/13225/2019 ORDER3. Shri Ankit Shah, learned counsel appearing for the respondents could not dispute the fact that the said question of cross-examination vitiating the order is in fact covered by the number of judgments, which have been cited on behalf of the petitioner.
4. Present petition has been taken out under Article 226 of the Constitution of India with following prayers.
"a) Your Lordships be Pleased to issue an appropriate writ order or direction in the nature of a writ of Certiorari and or any other writ, order or direction, quashing and setting aside the impugned order in original no.SUR-
EXCUS-COM-04-18-19 dtd 26.03.2019 and further direct the Adjudicating authority to re-hear and re-adjudicate their case by following all the basic principles of natural justice and then pass the necessary orders afresh.
And or in the alternative
b) Your Lordships be pleased to issue an appropriate writ order or direction in the nature of writ of mandamus and or any other appropriate writ, order or direction to the learned Custom Excise Service Tax Appellate Tribunal to accept the appeal without any pre-deposit and or appropriately reduce the quantum of pre-deposit as reasonably, so as to enable the filing of Appeal by the Petitioners herein;
c) Pending petition Your Lordships be pleased to stay the implementation and recovery of the impugned order no.SUR-EXCUS-COM-04-18-19 dated 26.03.2019 passed by the Learned Principal Commissioner of Central Excise.
d) Ex-parte ad interim relief in terms of prayer B above may kindly be granted pending the admission and final disposal of the present petition.
e) Any other relief/s deemed fit and appropriate in the facts of the case may kindly be granted."
Page 2 of 5 Downloaded on : Thu Feb 13 20:29:47 IST 2020 C/SCA/13225/2019 ORDER4.1 Thus, what is essentially under challenge is the order dated 26.3.2019, which is passed on the premise that the demand for cross-examination of co-noticees was just modus for delaying the proceedings as the same is evident from the observations of the authority passing the order at page 127, which is set out herein below:-
"In light of above facts I find that the investigating authority brought out ample documentary evidences on record to prove the diversion and the responsible persons of firms, who were having full knowledge about their business, have deposed facts after perusal of these seized documents into their statements admitting their involvement in the diversion of AGU. The demand of cross-examination of the co-noticees is just modus to delay proceedings. In view of the above position the rejection of the request for cross examination of the witnesses does not violate the principles of natural justice."
5. The Court is of the view that the order, which has been rendered is essentially based upon the statements, which have been relied upon by the department, then the persons making those statements were required to be permitted to be cross- examined by the petitioner. Counsel for the petitioner invited this Court's attention to the latest order passed by this Court on 6.9.2018 in the proceedings of Special Civil Application No.10629 of 2018 with Special Civil Application No.11008 of 2018, wherein after recording the fact that non-affording an opportunity of cross-examination despite demand would vitiate the order and when the counsel were at ad-idem on the said proposition of law remanded the matter to the authorities. Division Bench of this Court while passing the order on 6.9.2018 in Special Civil Application No.10629 of 2018 with Special Civil Application No.11008 of 2018 clearly observed Page 3 of 5 Downloaded on : Thu Feb 13 20:29:47 IST 2020 C/SCA/13225/2019 ORDER and set out the number of decisions on the said proposition of law. Paragraph 2 of the said judgment is required to be reproduced herein below for ready reference.
"2 At the outset, learned advocate for the petitioners in both this petitions would invite our attention to oral order dated 13.07.2018 passed in R/Special Civil Application No. 4266 of 2018 passed by a Division Bench of this Court (Coram: Hon'ble Mr.Justice Akil Kureshi and Hon'ble Mr.Justice B.N.Karia), wherein similar such question arose in the context of subject petition and the prayer made about grant of permission of cross examination of witnesses and after referring to settled proposition of law so held in the case of Mulchand M. Zaveri v. Union of India, reported in 2016 (339) ELT 364 (Guj), Commissioner of Central Excise, Ahmedahad II vs. Gujarat Cypromet Ltd., reported in 2017 (345) ELT 520 (Guj), Commissioner of Central Excise & Customs vs. Chandan Tubes & Metals Pvt. Ltd., reported in 2012 SCC Guj 4917, and Manek Chemicals Pvt. Ltd vs. Union of India reported in 2016 (334) ELT 302 (Guj) and Andaman Timber Industries vs. Commissioner of Central Excise, Kolkata II, reported in (2016) 15 SCC 785, whereby the above decisions clearly upheld right of the affected party to cross examine witnesses irrespective of the fact that he had an opportunity or an access to the material on record."
6. In the instant case, this Court also do not propose to examine any other aspect or merits, else it would not be proper thereafter to remand the matter and as the counsel for the respondents also could not controvert or dispute the settled proposition of law and as it is also not disputed that the statements, which have been taken into consideration for casting the order, the persons making those statements have not been permitted to be cross-examined on the perception that the same was only a delaying tactic. Therefore, without observing anything further on the merits, we are of the view Page 4 of 5 Downloaded on : Thu Feb 13 20:29:47 IST 2020 C/SCA/13225/2019 ORDER that the order is required to be quashed and set aside only on the ground of authority's denial to grant cross-examination, as requested, had vitiated the order and, therefore, the concerned respondent no.2 shall afford an opportunity to cross-examine the persons, authorities, whose statements have been relied upon as well as the officers involved in the investigation and cast the order afresh after applying mind to the facts and circumstances of the case and it may be observed at this stage that so far as other merits are concerned, the Court has not gone into and it would be absolutely appropriate to the authority to apply its mind and pass appropriate order as expeditiously as possible. With these observations, petition is disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.
(S.R.BRAHMBHATT, J) (A. P. THAKER, J) R.S. MALEK Page 5 of 5 Downloaded on : Thu Feb 13 20:29:47 IST 2020