Cross-Examination Necessary For Arriving At Fair Trial, It Is Not Whims Of Adjudicating Authority To Allow Or Reject Request: CESTAT

The Ahmedabad bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that cross-examination is necessary for arriving at a fair trial.

The bench of Ramesh Nair (Judicial Member) and Raju (Technical Member) has observed that, as per Section 9D of the Central Excise Act, it is not the whims of the adjudicating authority to allow or reject the request for cross-examination.

The appellant/assessee has challenged the order by which excise duty of Rs. 1,52,06,323, equal penalty, demand of interest, and personal penalty on Shri Abbasbhai for Rs. 15,00,000 were confirmed on the charge of clandestine removal of the goods for the period March 2009 to August 2012. Therefore, the appeals filed by the appellants.

The appellant contended that the entire case was made out on the basis of the printout taken from the computer lying on the factory premises and the statements of the various persons. Regarding the printout taken from the computer, Section 36B of the Central Excise Act was not followed. Therefore, the computer printout cannot be used as evidence.

The appellant contended that the specific request for cross-examination of the witnesses whose statements were heavily relied upon was rejected. Therefore, the order without allowing the cross-examination of the witnesses is not sustainable.

The CESTAT found that, apart from other evidence such as computer printouts and other documents, Mainly, the case is based on the statements of various people. The appellant has requested a cross-examination of the witnesses, which has been rejected by the adjudicating authority. In the adjudication process, conducting the examination-in-chief and thereafter offering the witness to the appellant for cross-examination is mandatory under Section 9D of the Central Excise Act, 1944.

The tribunal held that if the appellant disputes the statements that are relied upon for adjudication, it is incumbent on the adjudicating authority to allow the cross-examination of the witnesses, and if the outcome of the cross-examination is consistent with the statement given by the witnesses, the same can be admitted as evidence.

Counsel For Appellant: Paresh V Seth

Counsel For Respondent: Rajesh Nathan

Case Title: Shri Abbasbhai Teherali Bharmal Versus Commissioner of C.E. & S.T.-Rajkot

Case No.: Excise Appeal No. 11507 of 2016- DB

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