Union of India (UOI) vs Rajendra Bajaj

Heard.

Perused appeal.

The Facts:

This appeal is directed against the order dated 9th October, 2009 passed by respondent No. 2 appellate Tribunal remanding the matter to the Adjudicating Authority - the Commissioner of Customs, CSI, Airport, Mumbai for de novo enquiry with directions to afford an opportunity of personal hearing to respondents keeping in mind that an opportunity to cross-examine is also a part of an opportunity of adducing evidence.

The Revenue is mainly aggrieved by the observations directing an opportunity of cross-examination of witnesses holding it to be a part of principles of natural justice.

Submissions:

Mr. Desai, learned Senior Counsel for the Revenue urged that the Tribunal was not correct in setting aside the adjudication order and remanding it with specific directions to afford an opportunity of cross-examination of the witnesses, especially, when the adjudicating authority, by a reasoned order had recorded a finding that the cross-examination of the witnesses was not necessary. He submits that the order impugned to that extent is erroneous, bad and illegal as such liable to be quashed and set aside.

In reply, Learned Counsel for respondent No. 1 urged that right to cross-examine is a part of right of exercising defense. He, further submits that the observance of principles of natural justice contemplates an opportunity to cross-examine the witnesses, if necessary. He further urged that in the instant case, the issue for adjudication involved is: At what stage passenger was intercepted i.e. before or after crossing green channel. According to him, to decide this issue, the time of recording panchanama is very crucial, especially, in the light of the arrival of the flight and the time taken by the passengers to deplane. From the impugned order, he brought to our notice that the subject flight of the Delta Airlines by which respondent No. 1 had travelled, was to land at 21.30 hrs; whereas it was actually arrived at 22.04 hrs. According to panchanama, the appellant was intercepted at the gate at 22.00 hrs. He, thus, submits that the time recorded in the Panchanama is relevant for proving his defense. He, thus, submits that the Tribunal was perfectly justified in directing consideration of an opportunity to cross-examine the witnesses concern.

Consideration

Having heard both the parties, prima facie, we are satisfied with the directions given by the Tribunal. No fault can be found with the view taken by the Tribunal, considering the factual context sketched herein. In our considered view, no substantial question of law is involved in the appeal warranting admission thereof. Right to cross-examine witnesses is a part of principles of natural justice and it is an effective weapon to prove ones defence. Cross-examination of witness is well recognised as part of fair hearing, refusal whereof is considered as denial of natural justice. But the Supreme Court held in K.L. Tripathi Vs. State Bank of India and Others, that where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases and does not vitiate the decision. This aspect will have to be considered on its merits by the adjudicator. The appeal is, thus, without merit.

At this juncture, it is relevant to place it on record that along with this appeal, a Writ Petition filed by respondent No. 1 bearing No. 390 of 2010 was also heard. While partly allowing that Writ Petition to the extent mentioned in the order passed by us on 13th April, 2010, the impugned order is slightly modified for the reasons recorded therein. With this note, appeal is rejected in limine for want of substantial question of law with no order as to costs.