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2017 DIGILAW 220 (CAL)

V. K. Udyog Limited v. Union of India

2017-02-24

DEBANGSU BASAK

body2017
JUDGMENT : 1. The Court :- The petitioner challenges an order in original dated October 21, 2016 passed by the Commissioner of Central Excise. 2. Learned Advocate for the petitioner submits that, the proceedings before the Commissioner of Central Excise stands vitiated since the petitioner was denied the right to cross-examine the witness on behalf of the prosecution in spite of request. He refers to the impugned order and the portion where the request for cross-examination of the witness for the prosecution has been noted and the refusal thereof. He submits that, the cross-examination was refused on the basis that, the evidence of the prosecution witness was taken under Section 108 of the Customs Act. He submits that, Section 108 of the Customs Act does not preclude the witness from being cross-examined. 3. Learned Advocate for the revenue submits that, this is the second round of challenge by the petitioner in respect of the proceedings taken by the authorities. He refers to the order dated August 28, 2014 passed in the earlier petition being WP No. 466 of 2014. He refers to the application made by the petitioner consequent to the order dated August 28, 2014. He relies upon (1973) 2 Supreme Court Cases 438 (M/s. Kanungo & Company-Versus-Collector of Customs & Ors.) in support of such contention. 4. I have considered the rival contentions of the parties and the materials made available on record. 5. Two aspects were noted in M/s. Kanungo & Company (supra) one was the breach of principle of natural justice and the other is the right to cross-examine a person who had given information of the wrong doing. In the present case, the petitioner has not alleged breach of the principles of natural justice, in the sense that, it has not been heard but that, the right to cross-examine of the prosecution witness has been denied. In the present case, the petitioner is not seeking to cross-examine the informant. He seeks to cross-examine the prosecution witnesses. 6. In a quasi-judicial proceeding, a party to such proceeding is entitled to cross-examine of the witness of the other side when evidence is lead through such witness in such proceedings. 7. In the present case, evident of various persons including evidence of the transporters have been looked into by the authority concerned to arrive at a finding as returned in the impugned order. 7. In the present case, evident of various persons including evidence of the transporters have been looked into by the authority concerned to arrive at a finding as returned in the impugned order. The petitioner had contemporaneously requested for cross-examination of such prosecution witness. The same has been denied. In such circumstances, the impugned order is set aside. 8. The authorities are at liberty to proceed afresh with regard to the proceedings after affording the petitioner an opportunity to cross-examine the prosecution witnesses, in accordance with law. . WP No. 83 of 2017 is disposed of. No order as to costs.