C. E. A. No. 59 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. E. A. No. 59 of 2007 Date of Decision : October 31, 2008. Commissioner of Central Excise .... Appellant Vs. M/s Hindustan Polyster Lines .... Respondent CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kamal Sehgal, Advocate for the revenue. Mr. C. Hari Shankar, Advocate Mr. S. Sunil, Advocate and Mr. Suman Jain, Advocate for the assessee. * * * ADARSH KUMAR GOEL, J. (Oral) : 1. Commissioner of Central Excise has preferred this appeal under Section 35-G of the Central Excise Act, 1944 against order dated 22.08.2006 passed by the Customs, Excise and Services Tax Appellate Tribunal, New Delhi. 2. Substantial questions of law sought to be raised are :- “(i) Whether the Tribunal was justified or not in remanding the case back to the Commissioner ? C. E. A. No. 59 of 2007 2 (ii) Whether cross-examination of the witnesses in the absence of any prejudice is justified or not ? (iii) Whether the denial of cross-examination of witnesses has violated the principles of natural justice ?” 3. Revenue raised a demand against assessee on the ground of clandestine removal of goods without payment of excise duty. 4. On appeal to the Tribunal, it was found that opportunity to cross-examine witnesses was not given to the assessee, for which purpose the assessee was directed to appear before the Commissioner on 25.09.2006 and matter was remanded to the Commissioner. 5. The Tribunal also noticed the contention raised on behalf of the assessee that adjudication proceedings were concluded without giving opportunity to the assessee of cross-examination of the witnesses, whose statements were recorded at the back of the assessee. The assessee was proceeded against ex-parte, while the assessee was not aware of the date of hearing. It was observed that it was in the interest of justice to grant an opportunity to the assessee. 6. Though the tax authorities are not bound by technical rules of evidence, principles of natural justice are required to be followed, which require that the assessee is given the opportunity to cross-examine the witnesses, if so warranted by the facts. In State of Kerala vs. KT Shaduli Grocery dealer, (1977) 2 SCC 777, the Hon'ble Supreme Court observed : “4. .....It is, therefore, not possible to say that in every case the rule of audi alteram partem requires that a particular specified procedure is to be followed. It may be that in a given case the rule of audi alteram partem may import a requirement that witnesses whose statements are sought to be C. E. A. No. 59 of 2007 3 relied upon by the authority holding the inquiry should be permitted to be cross-examined by the party affected while in some other case it may not. The procedure required to be adopted for giving an opportunity to a person to be heard must necessarily depend on facts and circumstances of each case..... 5. .....It can hardly be disputed that cross- examination is one of the most efficacious methods of establishing truth and exposing falsehood.....” 7. The Tribunal having given the assessee an opportunity of cross-examination, on facts of the case, we do not find any ground to hold that such a view was liable to be interfered with in appeal under Section 35- G of the Act, which lies only on substantial questions of law. 8. We find that the impugned order was passed two years ago. No stay was sought or granted. Still, the Commissioner has failed to carry out the direction of the Tribunal, by which the Commissioner was bound, only on pretext that appeal was filed. Such conduct of the Commissioner can hardly be appreciated. 9. The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE October 31, 2008 ( L. N. MITTAL ) monika JUDGE