JULY 22, 2024

By S K Rahman, IRS, working as AR at Delhi CESTAT

MANY Notices request Adjudicating Authority for cross examination of other Co-notices, witnesses, panchas, officers etc. The Adjudicating Authorities, if found necessary and relevant, do permit the cross examination. Sometimes the Adjudicating Authorities, may find such request as not really necessary and relevant, and hence may reject the request for cross examination. Some of the Notices, if aggrieved of such decision to deny cross examination, want to file appeal in next appellate forum against the decision of Adjudicating Authority on cross examination.

2 When the Adjudicating authority is Commissioner/ Principal Commissioner, the appeal lies with CESTAT. As per Sec 129A of Customs Act 1962, any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order -

(a) a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs] as an adjudicating authority;

(b) ………

The denial of cross examination is a decision by Commissioner/ Principal Commissioner as Adjudicating Authority. Even though it is on a short issue of cross examination, that too before passing of Adjudicating Order, but the appeal lies with CESTAT.

3 But whether it is worth going in appeal to CESTAT on the issue of cross examination can be seen by a recent order passed by CESTAT. In the case of Anand International vs the Commissioner of Customs, Inland Container Depot, Patparganj, New Delhi, in Customs Appeal No. 50724 of 2024, filed against Letter DIN: 20240574NB000000FD14 issue vide C. No. VIII/(6) ICD/PPG/Adj./SCN/Anand Int./115/2022 dated 17.05.2024 passed by the Commissioner of Customs, ICD PPG and Others ICDs, Patparganj, New Delhi, the CESTAT has passed Final Order No. 55989/2024 dt. July 01, 2024. - 2024-TIOL-688-CESTAT-DEL The details are as follows:

4. FACTS OF THE CASE: It is a case where a Show Cause Notice dated 20.10.2022 was pending before the Commissioner of Customs, Patparganj. The Noticee has requested for cross examination of Panchas, Intelligence Officer & Senior Intelligence Officer of the investigating team of DRI and Ms. Sanskriti Bhardawaj, Forensic Expert. The Adjudicating Authority vide his Order dated 17.05.2024 has denied the cross examination of the grounds that who have been required to be cross-examined have not tendered any statement in terms of section 108 of Customs Act 1962. Therefore, the Adjudicating Authority felt that seeking cross examination of these persons appears to be unreasonable and unwarranted which may cause further delay in adjudication of the SCN which is time bound. He further stated that the adjudication was already delayed due to non-cooperation of Notices.

5 The CESTAT has held that it would always be open to the Appellant to raise this issue of denial of cross examination, once the Final Order is passed by the Commissioner.The CESTAT felt that it would not be appropriate, at this stage, when the Commissioner is in the process of adjudicating the show cause notice, to examine this issue. The CESTAT vide Final Order No. 55989/2024 dt. July 01, 2024 - 2024-TIOL-688-CESTAT-DEL in this case of Anand International vs the Commissioner of Customs, Inland Container Depot, Patparganj, New Delhi has dismissed the appeal with liberty to the Appellant to raise the issue of denial of cross examination before the Tribunal after the Commissioner decides the matter.

6 This is not the first time such decision is taken by the CESTAT. In an earlier case of Mahalaxmi Valves Pvt Ltd. vs the Pr Commissioner of Customs (Import) Inland Container Depot, Tughlakabad, New Delhi, in Customs Appeal No. 50198 of 2024, the CESTAT has passed similar Final Order No. 54525 /2024 dt 27/02/2024. - 2024-TIOL-687-CESTAT-DEL. Infact, in the case of Anand International vs the Commissioner of Customs,Inland Container Depot, Patparganj, New Delhi, in Customs Appeal No. 50724 of 2024 reliance has been placed upon the CESTAT Final order of Mahalaxmi Valves Pvt Ltd. vs the Pr Commissioner of Customs (Import) Inland Container Depot, Tughlakabad, New Delhi, in Customs Appeal No. 50198 of 2024.

7 From the above Orders, the message is very clear that :

i. If any Noticee is aggrieved of the decision to of Adjudicating Authority denying the cross examination, during adjudication, before passing of Adjudication Order, it is not advisable to file an appeal against such order of Adjudicating Authority on denying the cross examination to CESTAT

ii. If the final Adjudication Order comes against the Noticee, if the Noticee is aggrieved of the final Adjudication Order, then while filing appeal, the appellant is free to raise the issue or make denial of cross examination as one of the Grounds of Appeal before the CESTAT in the appeal being filed against the final Adjudication Order.

8 Even though the Noticee/Appealnt feels that adjudicating authority committed an 'illegality' in denying cross-examination sought by the appellant or injustice has been done to him, it is always better to see the previous Orders of CESTAT, and weigh pros & cons before deciding to file an appeal on such orders of denial of cross examination.

(The views expressed are personal and not in official capacity)