The right of cross-examination is an essential part of the principles of natural justice and applies to adjudication proceedings under the Customs Act, 1962.

Debangsu Basak, J.

The petitioner has challenged the order in original dated September 6, 2018 passed by the adjudicating authority exercising jurisdiction under the provision of the Customs Act, 1962 in the present writ petition.

2. Learned Senior Advocate appearing for the petitioner has submitted that, the petitioner assails the order in original, even though there exists a statutory alternative remedy with regard thereto, on the ground that the order in original stands vitiated by the breach of principles of natural justice.

3. Learned Senior Advocate appearing for the petitioner has submitted that, the petitioner was served with a show cause notice dated February 13, 2017. The petitioner had replied to such show cause notice. In the reply, the petitioner had requested for cross-examination of the witness of the prosecution. He has referred to the impugned order in original and submitted that, although, the adjudicating authority has noted that, the petitioner wanted to cross-examine the prosecution witnesses, the adjudicating authority disallowed the same on the ground that, the evidence in adjudication proceedings need not be like the one in criminal cases. Moreover, according to the adjudicating authority, the circumstantial evidences corroborated the statements made under Section 108 of the Customs Act, 1962. The persons making the statements under Section 108 of the Act of 1962 made the same voluntarily and did not retract from the statements. Such witnesses were conversant with the facts of the case and the role of the petitioner. Moreover, the petitioner did not make out any specific reason or point for seeking cross-examination. Therefore, the request for cross-examination was denied. He has submitted that, an adjudicating authority cannot deny the right of cross-examination to a noticee in a proceedings under the Act of 1962. He has referred to Section 138B of the Act of 1962 and has submitted that, a statement of a witness will become relevant without cross-examination, only if, the grounds stipulated in sub-Section (1) thereof stands fulfilled. In the present case, such grounds have not been fulfilled. There is no finding by the adjudicating authority that, any of the grounds enumerated in sub-Section (1) of Section 138B of the Act of 1962 exists. Therefore, the decision of the adjudicating authority, in not allowing cross-examination of the witnesses, is wrong. The impugned order therefore stands vitiated by breach of principles of natural justice.

4. In support of the contention that, when a cross-examination is denied, the impugned order stands vitiated by breach of principles of natural justice and renders the impugned order as a nullity, learned Senior Advocate appearing for the petitioner has relied upon (Andaman Timber Industries v. Commissioner of Central Excise, Kolkata II, (2016) 15 SCC 785), (Lakshman Exports Ltd. v. Collector of Central Excise, (2005) 10 SCC 634), (New India Assurance Company Ltd. v. Nusli Neville Wadia & Anr., (2008) 3 SCC 279), (M/s. V.K. Udyog Limited v. Union of India & Anr., (2017) 3 WBLR 386), (Skyrise Overseas Pvt. Ltd. (earlier known as Saraf Impex Pvt. Ltd.) & Anr. v. The Commissioner of Customs (Port) & Anr., (2017) 353 ELT 421 (Cal)), (Sadguru Forwarders Pvt. Ltd. v. The Commissioner of Customs (Port) Kolkata & Anr., judgment and order dated May 8, 2018 passed in W.P. No. 56 of 2018), (Sadguru Forwarders Pvt. Ltd. v. The Commissioner of Customs (Port) Kolkata, judgment and order dated May 14, 2018 passed in W.P. No. 85 of 2018) (Ankit Kapoor v. the Commissioner of Customs (Port) West Bengal, (2018) 362 ELT 401 (Cal)), (Shiva Sahu v. Union of India & Ors., (2018) 362 ELT 439 (Cal)), (Lakshman Lal Das v. The Chief Commissioner of Customs & Ors., judgment and order dated September 17, 2018 passed in W.P. No. 448 of 2018), (Commissioner of Customs (Port), Customs House & Anr. v. Sadguru Forwarders Pvt. Ltd., judgment and order dated August 23, 2018 passed in G.A. No. 224