Facts- A notice alleging clandestine manufacture and clearance of finished goods during the period from 2012-13 to 2015-16 based on various statements recorded under section 14 of Central Excise Act. It included the statement of buyers and some of those buyers denied of having received any goods without invoices which according to the petitioner since favored them, the statements have not been relied upon.
Conclusion- While holding in principle that it is the right of the parties to make a request for the defence witnesses of even those witnesses who have been dropped out by the Revenue, the request, in the instant case, was not of examining them as defence witnesses till the learned counsel stepped in, but, of cross-examining them without examining them as defence witnesses and that simply is impermissible and hence, the order impugned cannot be interfered with.
Remand the matter back to the authority who passed the order-in-original to hear it from the stage where it was when they approached this Court. Let the petitioner cooperate.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. The petitioner herein is challenging the order dated 28.08.2019 issued by the Commissioner of Central Goods and Service Tax Act, Vadodara-II whereby the request for cross examination of the witnesses whose statements have been recorded but not relied upon is questioned. It is on the ground that it is not tenable, no genuine reason for asking for cross examination that this denial had come. The petitioner’s grievance is that there is no finding given by the respondent no. 2 as to why he has not found such a request sustainable. This being a nonspeaking order, it is in clear violation of the principle of natural justice.
2. The prayers sought for in the present proceedings are as follows: –
“(A) That Your Lordships may be pleased to call for records and proceedings before respondent no.2, the Commissioner of CGST and Service Tax, Vadodara-II Commissionerate at Vadodara to verify the noting of directions on the file;
(AA) That Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ in the nature of certiorari, direction or order, quashing and setting aside the Order in Original No. VAD-EXCUS-002-COM-015-20-21 dated 29.10.2020 passed by respondent no.2;
(B) That Your Lordships may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, direction or order, quashing and setting aside the decision of the respondent no.2 conveyed vide Letter 28.08.2019 issued in F.No. order/letter dated 28.08.2019 (Annexure-A), and be further pleased to direct respondent no.2, to allow the petitioners to cross examine the persons whose statements are taken but not relied upon in the Show Cause Notice;
(C) That Your Lordships may be pleased to issue a writ of prohibition or any other appropriate writ, direction or order, completely and permanently prohibiting the 2nd respondent herein from conducting and concluding adjudication proceedings of Show Cause Notice No. V. CH.72(04)/RSL/PREV/ADJ/COMMR/03/2017-18 dated 08.05.2017 (Annexure-B) without allowing cross examination of defence witnesses requested for by the petitioners vide letter dated 23.07.2018 (Annexure-C collectively);
(D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Commissioner of Customs, Ahmedabad, the 2nd respondent herein, from proceeding ahead with the adjudication of Show Cause Notice V. Ch. 72(04)/RSL/PREV/ADJ/COMMR/03/2017-18 dated 08.05.2017 (Annexure-B);
(DA) Pending the hearing and final disposal of the petition, Your Lordships may be pleased to restrain Respondents, its agents, servants not to take any coercive actions pursuant to the Order In Original No. VAD-EXCUS-002-COM-015-20-21 dated 29.10.2020 (Annexure-H) and stayed the implementation and the operation of the order dated 29.10.2020;
(E) An ex-parte ad-interim relief in terms of para 10(D) above may kindly be granted;
(F) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted.”
3. The facts leading to the present petition, in brief, are as follows:
3.1. The petitioner is a company incorporated under the Companies Act and is engaged in manufacturing of Stainless Steel Billetrs, Bright Bars, Rounds, Flats etc. falling under Chapter 72 of the Central Excise Tariff Act, 1985.
3.2. A show cause notice has been issued by the respondent no. 2 dated 08.05.2017 alleging clandestine manufacture and clearance of finished goods during the period from 2012-13 to 2015-16 based on the various statements recorded under Section 14 of the Central Excise Act, 1944 (hereinafter referred to as ‘the Act’). It included the statements of buyers and some of those buyers denied of having received any goods without invoices which according to the petitioner since favoured the petitioner, the statements have not been relied upon.
3.3. The petitioner sought the inspection of the relied upon documents and the statements as well as those statements which had not been relied upon by the department. It also sought the copies of those materials and the petitioner when could notice from the non-relied upon statements drawn under Section 14 of the Act, yet those statements would be material in support of the defence to rebut the allegations alleged against the petitioner in the show cause notice, it sought the cross-examination of those persons who had tendered the statements on 23.07.2018 wherein the request has been made on the part of the petitioner that the applicant has not recorded the transactions with respect to the sales and purchase of the raw-materials and finished goods in the books of accounts and thereby allegedly manufactured and cleared the goods without the payment of duty. According to the applicant, the allegations of evasion of duty on clearance of goods without payment of duty is unsustainable and is incorrect.
3.4. He also has further urged that for putting forth the defence of the applicant, the cross-examination of the deponents whose statements have been recorded and relied upon in the show cause notice be permitted. It has further urged that the application be heard before the adjudication of the show cause notice and appropriate order be passed, for which, reliance is placed on the decision of this Court in case of Mahek Glazes Pvt.Ltd. vs. Union Of India, reported in 2014 (300) E.L.T. 25(Guj.). Along with this Annexure-A which consists of the list of the persons whose statements had been recorded before issuance of the show cause notice and whose cross-examination had been requested also has been annexed.
3.5. It appears that the Commissioner of Central Goods and Service Tax, Vadodara-II passed the order impugned on 28.08.2019 by his brief order where he rejected the request on the ground that it is untenable. He also further mentioned that the judgment relied upon by the applicant has been examined as found to be not relevant to the present case. It is further his say that all the non-relied upon statements have already been supplied to the applicant and there is no genuine reason for asking for cross examination of the persons whose statements have not been relied upon in the show cause notice. He accordingly has denied the request of the cross examination of those whose statements have not been relied upon in the show cause notice. He further mentioned that the cross-examination of those whose statements have been relied upon has already been conducted and therefore, he directed the petitioner to submit the final reply to the show cause notice at the earliest.
4. We have extensively heard learned Senior Advocate Mr.Hemant Dharmadhikari assisted by learned advocate Mr.Dhaval Shah who has urged that it is prerogative of the parties against whom the show cause notice has been issued as to whom to examine as the defence witness. He has also urged that a written submission had been made giving him once again a written request on 06.09.2019 to reschedule the hearing after allowing the defence witnesses to be examined. While so doing, reliance is placed in the decision of M.S. Naina vs. Collector of Customs, West Bengal, Calcutta-I [2000(123) E.L.T. 39 (Cal.)]. He further has urged that it is the right of the defence to rely upon the statements which have been recorded by the authority and not relied upon. It is not only the witnesses which the prosecution desire and decide to be summoned, but also, the witnesses which are requested for by the defence shall need to be summoned.
4.1. He has relied upon the following various decisions in support of his submissions: –
(i) M. S. Naina vs. Collector of Customs, West Bengal, Calcutta-I [2000(123) E.L.T. 39 (Cal.)]
(ii) Somany – Pilkington’s Ltd. vs. B.P.Verma (Director, Publications) [1995 (76) E.L.T. 281 (Del)]
(iii) Surya Boards Limited vs. Commissioner of Central Excise, Rohtak [2014 (312) E.L.T. 282 (Tri. Del)]
(iv) Subhnen Decor P. Ltd vs. Commissioner of Central Exicse, Vapi [2010 (251) E.L.T. 105 (Tri. Ahmd)]
(v) Kishore Bhikansingh Rajput vs. Preeti Kishore Rajput [2007 (3) Bom.C.R.279]
(vi) D.A.Rao vs. Commissioner of Central Exicse, Mumbai-I [2017 (347) E.L.T. 419 (Bom.)]
(vii) Commr. Of Cus. (General) vs. Sun Clearing & Forwarding Services Pvt. Ltd. [2016 (332) E.L.T. 453 (Bom.)]
(viii) Kellogg India Pvt. Ltd vs Union of India [2006 (193) E.L.T. 385 (Bom.)]
(ix) Savino Micron (India) Pvt. Ltd. vs. Union of India [2017 (351) E.L.T. 250 (Guj.)]
5. We have also heard extensively learned Standing Counsel Mr. Utkarsh Sharma who has taken us through the decisions, the provisions as also the order impugned to urge that no interference is desirable. According to him, the order impugned is passed in accordance with law. He, however, has acted with extreme fairness so far as the order-in-original which has been passed on 29.10.2020 by urging the Court to pass necessary order in that respect without defending the act of either learned Standing Counsel who was engaged in this matter before he was handed over the brief or of the officer who passed the order.
6. Firstly attending to the decision of M.S. Naina vs Collector of Customs, West Bengal, Calcutta-I (supra), it was a case where the petitioner in his application had prayed for the disclosure of the forensic test report which was directed in course of the adjudication proceedings and secondly, he wanted the summons on a defence witness as he wanted to examine the witness proposed to be summoned as according to him, the evidence of such witness was necessary for his defence. The Collector did not dispute the proposition that such a witness was necessary witness for the defence. He considered such a prayer but the witness who was to be examined, was a representative of the company and the company was not agreeable to send him till the summons was issued by the officer concerned. The Collector refused to issue the summons prayed for on the ground that the witness cited was a defence witness and no summons could be issued. The Court after quoting Section 108 had held that the Collector while in adjudication can issue a summons under the provision to compel the attendance of a witness. It also addressed the issue as to whether he could reasonably refuse to issue such a summons if the person to be summoned is a defence witness. The Collector took a view that he can lawfully refuse it but the Court held that it would not be proper use of powers under Section 108. The provision acknowledges the necessity of a person being summoned for giving evidence in a proceedings under the Act including the adjudication proceedings. The only limitation contemplated is by way of Section 128(1) that the person to be summoned must be such as the authority issuing the summons considers necessary. It would be improper construction according to the Calcutta High Court of the provision to think that the witness necessary for the prosecution alone could be summoned and not the witness necessary for the defence. It held that such a construction would be found a mentally inconsistent with the quasi-judicial nature of the adjudication, the object whereof is to find the truth or otherwise the allegation on which the charge has been levelled.
7. There are other authorities which have essentially endorsed the right of the defence to call for the defence witnesses. These different judgments have different falvours but essentially it goes down to lay the proposition that it is a right of the party to call defence witnesses against whom the adjudicatory proceedings is conducted who should be given not only the opportunity of cross-examination of the witness but also that those who have been denied such opportunity can always complain of the violation of principle of natural justice which is reviewable in the action of the judicial review. The Court also permitted the opportunity of examination of the defence witnesses.
8. This Court in case of Savino Micron (India) Pvt. Ltd. vs. Union of India [2017 (351) E.L.T. 250 (Guj.)] was considering the assessee’s request for an opportunity of cross-examination of Director (Revenue Laboratories), under whose signature CRCL report had been forwarded and opportunity of personal hearing in connection with the said report was denied. While confirming the demand, the Court held this denial to be a denial of opportunity and denial of opportunity relatable to the breach of principle of natural justice.
“(6) The question of maintainability of the petition being a jurisdictional issue is required to be addressed at the outset. In this regard it may be apposite to refer to the decision of this court in Manek Chemicals Pvt. Ltd.v. Union of India, 2016 (334) ELT 302, wherein this court was called upon to decide similar issues as have arisen in the present case. The court held thus:
“18. At this juncture, reference may be made to the following decisions: –
18.1 In Lachhman Das, Tobacco Dealers v. Union of India, (supra), the Delhi High Court held thus: –
“4. The main attack of the learned Counsel was based on denial of natural justice as discussed in the earlier part of the judgment. In my opinion, denial of an opportunity to examine the Chemical Examiner constitutes such violation of natural justice as will entail the setting aside of the impugned orders. The petitioner was entitled to examine the Chemical Examiner to find out the basis of his report and also the treatment according to the sample between the period it was taken and analysed. For this reason, the three main orders have to be quashed.”
18.2. In Mahek Glazes Pvt. Ltd. v. Union of India (supra), this Court has held thus: –
“6. Having heard learned counsel for the parties, we are inclined to interfere on the short ground of serious breach of principles of natural justice in the process of passing final order of adjudication. We say so because the adjudicating authority, though categorically informed by the representative of the petitioners that the petitioners are serious about exercise of their right to cross-examination and further that any meaningful participation in the adjudication proceedings can take place only after such cross-examination is granted, the authority proceeded to decide such request only along with the final order of adjudication. Whether the petitioners had a right to seek cross-examination in the facts of the present case, is not our brief at the moment. We, therefore, refuse to comment on the petitioners’ insistence for cross examination or authority’s reluctance to grant it. What we, however, find is that the petitioners had at least a right to be told whether such application is being granted or refused before final order was passed. When the petitioners prayed for cross-examination and reasonably expected that the same would be granted, they cannot be expected to participate in the adjudication proceedings up to the final stage. In other words, without dealing with and disposing of the petitioners’ application for cross examination, the adjudicating authority could not have finally adjudicated the issues. If he was of the opinion that the request for cross-examination was not tenable, by giving reasons, he could have rejected it. We wonder what would have happened, if he was inclined to accept such a request. In such a situation, he himself could not have finally disposed of the show cause notice proceedings. In either case, the petitioners had a right to know the outcome of their application.
7. Merely because the Commissioner was of the opinion that the petitioners had made such a request somewhat belatedly, would not permit him to, in the facts of the present case, deal with such an application only in the final order itself. Sum total of this discussion is that we are inclined to set aside the impugned order and request the adjudicating authority to pass a separate order on the petitioners’ application/ request letter for granting crossexamination of the named witnesses. We are conscious that the Commissioner has already decided such an issue, however, since we are quashing the order, this part of the order would also not survive and hence, the requirement of a fresh order. We are informed that the same officer continues to hold the office of the Commissioner of Customs & Central Excise, Surat-II. It would therefore, be not necessary to separately hear the petition once again before passing any such order. This would, however, not preclude the Commissioner from requiring the petitioners to show relevance for seeking cross-examination of the witnesses.”
18.3 The Supreme Court in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others, (2013) 4 SCC 465, has held thus:- “
24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of crossexamining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also Union of India v. T.R. Varma, Meenglas Tea Estate v. Workmen, Kesoram Cotton Mills Ltd. v. Gangadhar, New India Assurance Co. Ltd. v. Nusli Neville Wadia, Rachpal Singh v. Gurmit Kaur, Biecco Lawrie Ltd. v. State of W.B. and State of U.P. v. Saroj Kumar Sinha.)
25. In Lakshman Exports Ltd. v. CCE, this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue, i.e., permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concerned, to establish that the goods in question had been accounted for in their books of account, and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard, i.e., audi alteram partem.
26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia, this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows: “
45. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principles of natural justice should be held to be indefeasible right.” In view of the above, we are of the considered opinion that the right of crossexamination is an integral part of the principles of natural justice.
27. In K.L. Tripathi v. SBI, this Court held that, in order to sustain a complaint of the violation of the principles of natural justice on the ground of absence of opportunity of cross-examination, it must be established that some prejudice has been caused to the appellant by the procedure followed. A party, who does not want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross-examination was provided to him, specially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy and Channabasappa Basappa Happali v. State of Mysore.) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill, this Court held:
“9. In order to establish that the crossexamination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross-examine any official.”
28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government, is that the Government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that, the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the Government servant, he will not be able to conduct an effective and useful cross-examination.
29. In Rajiv Arora v. Union of India, this Court held : “13. … Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation.
14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such nonexamination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review.”
30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice.”
19. On a conspectus of the above decisions, it clearly emerges that cross-examination is an integral part and parcel of the principles of natural justice. In State of U.P. v. Mohd. Nooh, AIR 1958 SCR 86, the Supreme Court after referring to various authorities in this regard, has held that if an inferior Court or Tribunal at first instance acts wholly without jurisdiction or patently in excess of jurisdiction, or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice, and all accepted rules or procedure and which offends the superior Court’s sense of fair play, the superior Court may quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or the Tribunal at first instance, even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it. In C.I.T. v. Chhabil Dass Agarwal (supra) on which reliance had been placed by the learned counsel for the respondent, the Supreme Court held thus:-
“15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”
(20) Thus, breach of principles of natural justice and defiance of fundamental principles of judicial procedure falls within the exceptions noticed by the Supreme Court in the above decision, wherein the availability of an alternative remedy will not act as a bar in exercising writ jurisdiction under Article 226 of the Constitution of India.
(7) In the opinion of this court, the above decision would be squarely applicable to the facts of the present case inasmuch as the twopronged attack against the impugned Order-inOriginal is based upon the breach of principles of natural justice, firstly on the ground of nongrant of opportunity to cross examine the signatory of the CRCL report, and secondly on the ground of non-grant of any opportunity of personal hearing to deal with the contents of the CRCL report. In the facts of the present case, while it is true that the central issue involved in the case before the adjudicating authority relates to a classification dispute, however, it is equally true that none of the questions raised before this court relate to classification of the subject goods. The questions before this court relate only to the breach of principles of natural justice and hence, the availability of an alternative statutory remedy will not act as a bar in exercising writ jurisdiction under Article 226 of the Constitution of India.
(12) In the light of the fact that the adjudicating authority has placed reliance upon the report of the CRCL in respect of which the petitioner was not granted any opportunity of hearing, it is manifest that there is a breach of principles of natural justice warranting interference by this court. Additionally, the petitioner has set out several grounds in the communication dated 10.02.2016 stating the reasons as to why it seeks to cross-examine the signatory of the CRCL report. However, the request has fallen on deaf ears. It is settled legal position that the right to cross-examine ought or to have opportunity to effectively exercise that right is an essential part of principles of natural justice. Under the circumstances, the adjudicating authority was required to give fair opportunity to the petitioner to not only deal with the report of the CRCL, which was received subsequently but also to give an opportunity to the petitioner to cross-examine the Director (Revenue Laboratories) in respect of the contents of the report and the inferences drawn therein. Non-grant of opportunity to cross-examine the Director (Revenue Laboratories) in respect of the report on which reliance has been placed by the adjudicating authority, also amounts to breach of principles of natural justice. Insofar as the decision of the Bombay High Court in Patel Engineering Limited v. Union of India (supra) on which reliance has been placed on behalf of the respondents, this court is of the view that the same does not in any manner further the case of the respondents, inasmuch as, in the facts of the said case the several opportunities were granted to the assessee to make submissions with regard to the findings of the report of the expert committee and the court upon considering the overall facts of the case was satisfied that refusal to permit cross examination of some of the panel members was justified. In the light of the above discussion, the petitioner has made out a clear case of gross violation of the principles of natural justice warranting interference by this court in exercise of powers under Article 226 of the Constitution of India.”
9. The Courts have thus upheld the rights of cross examination and any denial of the opportunity on that count has been held to be in violation of the principle of natural justice. It is the right of the defence/litigating parties to ask for the examination of defence witnesses who could be from any pool which can include those witnesses whose statements have been recorded and not relied upon by the Department while prosecuting the person. In the instant case, the statements have been recorded of many of the witnesses and some of whom have not been examined as they have not been relied upon in the show cause notice. Surely from the said pool, the defence can make a request for examination of witnesses as defence witnesses and that simply cannot be denied by the authority. We are not in agreement with the respondent department when it disputes that basic proposition that the statements of prosecution witnesses which have not been relied upon and if the request comes forth for those witnesses to be examined as the defence witnesses, the same shall need to be allowed, subject to statutory provision of Section 128 as it is always to be left to the parties concerned in adjudicatory process as to whom they need to be brought as the defence witnesses. Here some of the witnesses are those whose statements were recorded before the show cause notice had been issued and for the reasons suited best to the respondents, quite a few of them were not included in the show cause notice. It would be always the right of the party against whom the show cause notice is issued to call them as defence witnesses as it is the right given to the party which faces the adjudication proceedings.
10. However, the question here is totally wholly different. The request on the part of the petitioner is for cross-examination of those witnesses whose statements had been recorded and not relied upon in the show cause notice. In that eventuality, if the authority concerned has chosen not to examine them as prosecution witnesses and those who are already relied upon by the Revenue when have already been cross-examined, defence cannot request to cross-examine witnesses whose statements have not been relied upon by the Revenue without examining them as defence witnesses. No interference in that count would be necessary.
11. We noticed that the emphasis before this Court was also on the subsequent submissions made on 06.09.2019 by way of another application by the learned counsel relying on the decision of M.S.Naina (supra) and urging the authority concerned to permit some of these witnesses to be examined as the defence witnesses. The Court cannot be oblivious of the fact that this was subsequent to the passing of the order dated 28.08.2019 and not prior to that. Not only the very basis was lacking, the Court also cannot be oblivious of the fact that after the passing of the order, if any improvisation is being made that cannot be permitted to be change the very edifice. Therefore, while holding in principle that it is the right of the parties to make a request for the defence witnesses of even those witnesses who have been dropped out by the Revenue, the request, in the instant case, was not of examining them as defence witnesses till the learned counsel stepped in, but, of cross-examining them without examining them as defence witnesses and that simply is impermissible and hence, the order impugned cannot be interfered with.
12. We need to notice with dismay, the event while this petition was pending. This Court notices the order passed by this Court where the notice for final disposal was issued on 21.11.2019. Thereafter, on 05.01.2021 the following order was passed: –
“1. The order passed by this Court on 09.03.2020 reads as follows:
“Learned advocate Mr. Viral Shah appearing for respondent no. 2 requests for time on the ground that affidavit-in-reply is required to be filed, which he ensures to do on or before 19.03.2020 with an advance copy to the other side.
The urgency is made out by learned counsel appearing for the petitioner since the adjudicatory authority is in the midst of hearing.
According to learned advocate Mr. Shah, till 19.03.2020, no proceedings shall be undertaken before the concerned authority as according to him, no date is fixed for the said purpose.
Let this matter be posted on 19.03.2020.
2. According to the learned Advocate, Mr. Dhaval Shah, during the period of pandemic, the respondent-authority has already completed the adjudicatory process. Although, what has been reflected by the Court in its order and on the basis of the submissions made by the learned Counsel for the respondent-authority is contrary to the same.
3. Learned Advocate, Mr. Shah, ENSURES to get the details and place on record by way of an affidavit, by the next date.
4. At the joint request, S.O. to 18TH JANUARY, 2021.”
12.1. The order passed on 23.03.2021 is as follows: –
“1. Urgency is made out by learned advocates appearing for the petitioner. According to them, the order in original has been passed despite the assurance given by the counsel to the Court.
2. Today since it is not convenient to the empanelled advocate Mr. Utkarsh Sharma, matter is being posted on 30.03.2021, when it shall be proceeded with.”
13. The Court needed to take a note of the fact that the order-in-original came to be passed despite the specific assurance given by the then learned Standing Counsel. It is also reflected in the order-in-original. We had directed the affidavit to be filed however, that has not come on record. We have chosen not to stretch this issue, but, the then learned Standing Counsel was expected to guide the officer concerned dispassionately and as otherwise needed as Court Officer. The order-in-original is passed in complete disregard to the adjournment sought by the respondent and assurance given to the Court even while urgency was made. It would be worthwhile to reproduce the relevant paragraph 25.2 from the order-in-original passed on 29.10.2020: –
“25.2. Vide letter dated 11.09.2019 the assessee inter alia informed that they have filed Special Civil Application No. 20429 of 2019 for cross examination with respect to impugned Show Cause Notice. The SCA no. 20429/2019 is pending decision as on date. No stay has been granted by Hon’ble H.C. in the present matter. Since there is no stay from Hon’ble H.C. of Gujarat, in order to initiate adjudication proceedings, vide this office letter dated 27.05.2020 a legal opinion was sought for from the Senior Standing Counsel for this matter. On 05.06.2020 he strongly recommended to issue a simple letter intimating the next date of hearing and then must go on. Since total four Personal hearings have already been granted to the assessee by the present Adjudicating Authority, no further PH was issued.”
14. Learned Standing Counsel Mr. Sharma, as we have noted above, has acted very fairly. According to us, this trend of not respecting their own words is unpalatable and untenable, therefore, we quash and set aside the order-in-original which has been passed without availing an opportunity of hearing.
15. Remand the matter back to the authority who passed the order-in-original to hear it from the stage where it was when they approached this Court. Let the petitioner cooperate. The matter to be completed in twelve (12) weeks’ time from the date of receipt of copy of this order.
16. Petition is disposed of in above terms.