V.K. Udyog Ltd. vs Union Of India & Anr.

The Court : The petitioner is aggrieved by the contents of a writing dated December 11, 2017 by which, the Department has disallowed, the right to

cross-examine 45 prosecution witnesses. Such witnesses are sought to examine in a proceeding initiated pursuant to a show cause notice dated March

25, 2013 issued under Sections 124 read with Section 28 of the Customs Act, 1962.

The Department is represented. Learned Advocate for the Department submits that, the petitioner is seeking to cross-examine witnesses who are

irrelevant. Moreover, the petitioner in its application making the request for cross examination, did not specify the witnesses who are required to be

cross-examined.

I have considered the rival contentions of the parties and the materials made available on record. It appears that, the authorities have issued a show

cause notice dated March 25, 2013 under Sections 28 and 124 of the Customs Act, 1962 alleging that, the petitioner has fraudulently availed of

benefits under the Duty Free Credit Entitlement Scheme. In course of the adjudication proceedings in respect of such show cause notice, the

petitioner had applied for crossexamination of the witnesses of the Department.

By a writing dated December 11, 2017 the authorities have rejected the request for cross examination of the witnesses of the prosecution without

assigning any reason. Proceedings for adjudication under the Customs Act, 1962 are given quasi judicial in nature. The adjudicating authority,

discharging functions under the Act of 1962 is mandated to adhere to the principles of natural justice. Audi alterem partem is a principle of natural

justice.

The noticee of a show cause notice, therefore, has to be provided with an opportunity of being heard by the adjudicating authority discharging

functions under the Act of 1962. The right to a hearing, under the principles of natural justice, would include the right to cross examine the witness or

witnesses produced by the opposite party. Cross examination is required to elicit the truth out of the witness, facilitate an efficient evaluation of the

credibility and accuracy of the evidence, and to afford an opportunity to the person against whom the witness deposes, to defend himself.

The right to cross examine the prosecution witness cannot be denied on the specious plea of irrelevancy. The prosecution considers the witness to be

relevant by producing it. It is no longer open to the prosecution to contend that, the cross examination of such witness is no longer relevant.

The adjudicating authority cannot deny the right to cross-examine on the ground that, such cross-examination is irrelevant. It cannot be said to be

irrelevant as the Department is relying upon such witness. The Department finds it relevant to its case.

The right of cross-examination accrues to the delinquent on the perception of the Department that, a witness is relevant and upon the Department

producing such witness for the purpose of examination-in-chief. It is for the delinquent to exercise its right of cross examination or waive it. Moreover,

the impugned writing dated December 11, 2017 does not contain any reason as to why the request for cross-examination has been disallowed by the

Department.

In such circumstances, the writing dated December 11, 2017 is set aside. The authorities will allow cross examination of all its witnesses. The

authorities will proceed with the adjudication in respect of the show cause as expeditiously as possible. WP No. 726 of 2017 is disposed of. No order

as to costs.