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Adjudication — Adjournment of hearing to be at insistence of parties — Not for difficulty faced by authority or circumstances beyond its control — Limit of three adjournments has to be understood from facts of case — Fourth adjournment may be granted if circumstances demand and no choice left — Section 33A(2) of Central Excise Act, 1944 (the Act).
Adjudication — Denial of request of cross-examination of persons whose statements were relied in SCN — Denial on ground that the case was based on documentary evidence and not on statements of persons.
Held:
Adjudicating authority pre-judged the issue and acted with pre-conceived mind — Natural justice principles to be followed by quasi-judicial authorities depending on facts/circumstances of case.
Appeal — Right to appeal not taken away and cannot be denied on ground of delay.
Facts:
An SCN was issued to the appellants demanding duty on unaccounted produces pursuant to the search and seizure. Notices were also sent to transporters. The Commissioner addressed a letter dated 26th September, 2008 to one of the appellants whereby the appellants’ request for cross-examination of witnesses was rejected and final date of hearing was intimated to the appellants.
The two issues requiring consideration are relating to misconstruction of provisions of law comprised u/s.33-A of the Act and the arbitrary rejection of the request for cross-examination of the persons whose statements were recorded and relied upon documents for conclusion in the matter.
The appellants contended that the Commissioner misconstrued the provisions contained in section 33-A of the Act which provided for granting of adjournment of hearing to a party for not more than three times as this was only an outer limit for number of days for hearing and thereby pleaded denial of natural justice. Referring to the Supreme Court decision in the case of State of West Bengal & Ors. v. Shivananda Pathak & Ors., (1998) 5 SCC 513 it was contended that the letter dated 26th September, 2008 clearly disclosed that the Commissioner had pre-judged the issue and had a biased approach in relation to the right of the appellants to cross-examine the persons whose statements were recorded and to be relied upon for the findings. This amounted to violation of principle of natural justice. According to the Revenue, the allegation of the appellants of biased attitude was devoid of substance. Such allegations cannot be made at a later stage after the final order was delivered. The appellants were uncooperative from the commencement of the proceedings. Further, relying on the decision in the case of Debu Shah v. Collector of Customs, 1990 (48) ELT 302, inter alia it was contended that in quasi-judicial proceedings authorities were not bound by strict rules of evidence and procedure and further contended that the information received from various sources could be relied upon without making it available to the parties.
Held:
The Tribunal observed that the fourth adjournment could be granted u/s.33A of the Act on the basis of valid and justifiable reasons. The decision of the Commissioner to decide about the claim of the appellants for cross-examination of the witnesses was premature on account of the fact that there was no defence placed on record for the appellants. Following the decision in the aforementioned Shivananda Pathak’s case, it was observed that the rejection of the request for cross-examination on part of the Commissioner clearly disclosed legal bias. Also, the rules of natural justice are applicable to quasi-judicial authorities depending upon the facts and circumstances of the case as observed in the case of A. K. Kraipak v. Union of India, AIR 1970 Supreme Court 150. The appellants were well within their rights to challenge the appeal as the appellants had the right to challenge the interlocutory order either immediately after the passing of order or to challenge the same along with the final order. Setting aside the impugned order, the appellants were permitted to file detailed reply to the SCN on or before 20th October, 2009 and the Commissioner was directed to dispose of the matter, in any case before 31st March, 2010. The appellants would not be entitled to seek adjournment more than three times in the matter. The matter was remanded with the consent of both the parties before the Commissioner at Indore to avoid further complications in the matter.
