Customs, Excise and Gold Tribunal - Bangalore
Sai Kripa Exim (P) Ltd. vs Commissioner Of Customs on 25 April, 2003
Equivalent citations: 2003(156)ELT225(TRI-BANG)
ORDER G.A. Brahma Deva, Member (J)
1. These are three appeals filed by the appellants with reference to the common impugned order dated 17-10-2002 passed by the Commissioner of Central Excise, Hyderabad.
2. Shri Dohipode appearing for the appellants, Shri Sai Kripa Exim (P) Ltd., & Others submitted that apart from the merits of the case, the impugned order suffers from denial of principles of natural justice inasmuch as effective hearing has not been granted.
3. He said that it was alleged in the show cause notice that B. Shiva Prasad has procured the foreign currency and sent the same to Hyderabad through his driver Mohammed Yusuf. It was submitted in reply to the show cause notice dated 12 April, 2002 requesting to make available the Panch witnesses as well as other persons whose statements were relied upon admitted to be for cross-examination, during the adjudication proceedings. No effective opportunity of cross-examination of the witnesses whose statements were relied on while issuing the show cause notice during the course of proceedings were given to the parties nor any efforts were made to ensure their presence by issuing summons required from persons in cross-examination. It was also submitted by him that in the circumstances of the case, when the cross-examination of the witness is denied their statements cannot be relied upon.
4. Heard Smt. Radha Arun, learned SDR for the Revenue who submitted that request made by the party to cross of co-noticees could not be allowed in view of the various decisions.
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 (153) E.L.T. 244 (S.C.) = 2003 (55) RLT 508 (S.C.)] 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 GTC 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 duly 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.