By TIOL News Service

MUMBAI, SEPT 15, 2017: THIS Writ Petition challenges the final order dated 27th February 2017 issued by the ADG (Adjudication) of the Directorate of Revenue Intelligence.

On 25th July 2014, a show cause notice was issued to the Petitioner. A corrigendum came to be issued thereafter on 23rd April 2015. The Petitioner replied on 28th May 2016. There was another reply of 15th December 2016.

The case of the Petitioner is that he was not at all involved with the acts that are the subject matter of the show cause notice. Although he was a promoter–director of the company in question, due to his advanced years and health he was stationed in Delhi. All the acts complained of were those of his employees, including one Sahu .

There is no dispute that the evidence of Sahu was led at the hearing before the adjudicating authority. The Petitioner sought leave to cross examine Sahu and was apparently granted this leave.

After answering some 82 questions, on account of an answer given by the witness Sahu, the Petitioner's counsel said that the cross examination of Mr Sahu could be taken to conclusion only after the Petitioner was allowed to cross examine the DRI officers who had conducted the search and seizure of the Petitioner's company on 30th October 2012 as also the independent pancha witnesses.

Vide a communication dated 17th January 2017, the petitioner was informed that the request for cross examination of DRI officers is unnecessary and cannot be allowed; that since Sahu was cross examined on two dates from 10 to 11 hours, no further cross examination opportunity was possible.

Thereafter on 21st January 2017, the Petitioner's Advocate made a representation once again seeking that no order be passed until an opportunity was granted to cross examine the DRI officers.

The present writ petition was filed a few days later on 30th January 2017 and apparently, thereafter, the impugned final order was passed on 27th February 2017 without considering the Petitioner's representation.

The High Court was unimpressed with the order passed and observed -

"6. We do not appreciate the manner in which the order of 17th January 2017 was passed and this makes vulnerable the final order dated 27th February 2017. It is well settled in law that where one party leads the evidence of the witness, the opposing side has a right to cross examine that witness. Thus, if the Revenue has led the evidence of any DRI officer or pancha witness, the Petitioner will be entitled to cross examine that witness and this opportunity cannot be denied on the ground that it is “unnecessary”. In a given case, the Petitioner may also be make out the sufficient cause to interpose the cross examination of a DRI official or pancha (whose evidence was led by the Revenue) before resuming the cross examination of the witness Sahu. Alternatively, a DRI official or witness whose evidence was led by the Revenue may be recalled as might the witness Sahu. All of these are possibilities in the course of any trial or evidence-gathering procedure. What is improper is closing out evidence in this fashion."

Nonetheless, the High Court noted –

"7. …, we expressly do not permit the Petitioner to attempt the cross examination of any DRI officer or pancha witness whose evidence has not been led by the Revenue. The right to cross examine is restricted only to those witnesses whose evidence has been led by the Revenue."

The orders dated 27th February 2017 and 17th January 2017 respectively were set aside.

The ADG, DRI was directed to decide whether to permit the interposing of the cross examination of a DRI official or pancha witness and it was emphasised that the Petitioner is not entitled to cross-examine any witness whose evidence is not led by the Revenue.

The Petition was disposed of.

(See 2017-TIOL-1884-HC-MUM-CUS)