Remand order for allowing cross-examination of witness - not complied with

PJ/Case Laws/2011-12/1566

Remand order for allowing cross-examination of witness - not complied with - whether justifiable

Case: COMMISSONER OF CENTRAL EXCISE, SALEM v/s M/S SHANMUGARAJAN SPINNING MILLS PVT LTD

Citation: 2012-TIOL-231-CESTAT-MAD

Issue:- Whether demand and penalty can be set aside on ground that remand order has not been implemented in as much as cross-examination?

Brief Facts:- The appellant-Revenue here in appeal against the order of the Commissioner (Appeals) setting aside the demand together with interest confirmed against the assessees and imposition of penalty. The lower appellate authority has set aside the demand and penalty on the ground that the remand order i.e., Final Order No. 996/09, dated 07.08.2009, had not been implemented in as much as cross-examination of Shri C.N. Ramesh, Manager of M/s Obliraja Textiles (P) Ltd., was not given.

Appellant’s Contention:- The Appellant contended that before the Commissioner (Appeals) passed the present impugned order, the revenue was not heard. Be that as it may, the fact remains that the direction given in the remand order by the Tribunal was not implemented for whatever reason. The remand order of the Tribunal does not stand modified in any manner. Therefore, the Commissioner (Appeals) is correct in his finding that non-implementation of the remand order has resulted in violation of the principles of natural justice.

Reasoning of Judgment:- The Tribunal held that the submission of Manager Shri C.N. Ramesh is crucial for the confirmation of the demand against the appellant and, therefore, he should have been allowed to be cross-examined. The Tribunal set aside the earlier impugned order and remitted the case to the original authority to decide the matter refresh after giving a reasonable opportunity of hearing to the assessees and allowing cross-examination of Shri C.N. Ramesh, M/s Obliraja Textiles (P) Ltd. Post remand, the Deputy Commissioner of Central Excise once again confirmed the demand and imposed penalty and as regards cross-examination of Shri C.N. Ramesh, he held that sincere and all out efforts and steps have been taken to secure the presence of Shri C.N. Ramesh but cross-examination was not possible in the absence of any information of whereabouts of Shri C.N. Ramesh, there was no option but no pass the same order as earlier passed, namely, by confirming the demand and imposing penalty. In the impugned order, the Commissioner has set aside the order of adjudication on the ground that in the absence of cross-examination of Shri C.N. Ramesh, principles of natural justice were violated. Therefore, the Commissioner (Appeals) is correct in his finding that non-implementation of the remand order has resulted in violation of the principles of natural justice.

Decision:- Appeal rejected.

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PJ/Case Laws/2011-12/1566

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