M/S Rama Arts And Exports vs Commissioner Of Customs ...
2021 Latest Caselaw 7861 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              D.B. Civil Writ Petition No. 14943/2021

1.     M/s Rama Arts And Exports, A Proprietorship Firm Having
       Its   Office     At       E-473,     Bhamashah             Industrial   Area,
       Kaladwas, Udaipur, Rajasthan Through Its Proprietor
       Anshul Dwivedi Through Power Of Attorney Anurag
       Sharma S/o Shri Hanuman Prasad Sharma Aged About 36
       Years, R/o C-502, Trimurty Apartment, Model Town,
       Malviya Nagar, Jaipur
2.     Anshul Dwivedi S/o Late Shri Ram Babu Dwivedi, R/o
       12648, South Street, Cerritos 90703, California, Usa,
       Proprietor Of M/s Rama Arts And Exports Through Power
       Of Attorney Anurag Sharma S/o Shri Hanuman Prasad
       Sharma Aged About 36 Years, R/o C-502, Trimurty
       Apartment, Model Town, Malviya Nagar, Jaipur
                                                                      ----Petitioners
                                     Versus
Commissioner Of Customs (Preventive), Jodhpur, Headquarters
Situated At Ncr Building, Statue Circle, C-Scheme, Jaipur-
302005
                                                                    ----Respondent

For Petitioner(s)            :    Mr. S.S. Hora
For Respondent(s)            :    Mr. Kinshuk Jain

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS

Judgment

20/12/2021 Petitioners have challenged the orders dated 01/11/2021 and

22/11/2021 passed by the assessing officer refusing the

petitioners' request of cross-examination of certain witnesses.

Perusal of the order dated 01/11/2021 would show that the

reason for refusing the request by said communication was that

the department had not recorded the statements of the persons

(2 of 3) [CW-14943/2021]

mentioned in the petition, and therefore, there was no question of

granting cross-examination. However with respect to

communication/order darted 22/11/2021, we notice that the

request for cross-examination of the witnesses was turned down

on different grounds namely:-

"4. Your request for cross-examination of third parties/merchant exporters, has also not been acceded by the Adjudicating authority, as their statements have been recorded under Section 108 of the Customs Act, 1962 and no retraction has been filed by them, during investigation. The instant case has other corroborative evidences and does not solely rely on statements of third parties."

Learned counsel for the petitioners vehemently contended

that the reasons stated by the authority for refusing the

petitioners' request for cross-examination is wholly invalid. Merely

because witnesses have not retracted the statements recorded

under Section 108 of the Customs Act is not a ground for refusal

of cross-examination and further even if such evidence is in the

nature of corroborative evidence, no reliance can be placed

without offering cross-examination of the witnesses if asked by

the petitioners. In support of this contention, counsel relied on

certain decisions.

In our prima facie view, the legal trend is increasingly clear

on the question of grant of cross-examination of the witnesses

during departmental proceedings including under the statutes

such as the Customs Act. If the department relies on any

statement of a witness for its final conclusions, cross-examination

must be granted. In other words, no part of statements of the

witnesses can be relied upon without being tested through cross-

examination if so demanded by the noticee. However, this court

(3 of 3) [CW-14943/2021]

has always maintained a self-imposed discipline not to interfere

with the departmental proceedings at an intermediary stage

unless gross injustice or prejudice is demonstrated.

As of now, the petitioners have merely received show cause

notice, adjudication of which is yet to be done. Whether the

department will rely upon the statements of the concerned

witnesses in the final adjudication and if so to what extent cannot

be foreseen. Instead of interfering with the pending proceedings

before the customs authorities, we keep the question open. We

leave it open to the petitioners to raise this legal contention if

ultimately so required.

With these observations, the petition is disposed of.

                                    (UMA SHANKER VYAS),J                                                 (AKIL KURESHI),CJ

                                   Anil Goyal/BM Gandhi-27









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