Facts of the case:-
The Bombay High Court felt that no right to cross-examine the witness before the reply to Show Cause Notice is filed and before adjudication commences. The petitioner, Prakash Raghunath Autade denied each and every allegation made in the show-cause notice. He, however, made a categorical statement that the said letter ought not to be treated as his reply to the show-cause notice. Referring to the statements of witnesses (recorded prior to the issuance of the show-cause notice) based whereon the show-cause notice came to be issued, the petitioner called upon the Commissioner to produce such witnesses for being cross-examined by him. This course of action, according to the petitioner, flowed from the statutory mandate contained in section 9D of the Act. While asking the Commissioner, the petitioner referred to another show-cause notice dated 25th September, 2020 which was answerable to the Deputy Commissioner of CGST, Division IV, Kolhapur Commissionerate and requested that both notices be adjudicated together.
Interpretation of law:-
The Commissioner, by a letter dated 13th July 2021, responded by stating that the petitioner not having replied to the show-cause notice, his request for cross-examination of the witnesses, at that stage, was premature. It was also stated that as and when the petitioner files his reply, his request for cross- examination of the witnesses would be examined in the light of the facts and circumstances of the case. Aggrieved by denial of the opportunity to cross-examine the witnesses whose statements were relied upon to issue the show-cause notice.
The division bench of Chief Justice Deepankar Dutta and Justice M.S.Karnik held that it is only after the statements of witnesses are recorded by the relevant authority in course of adjudication of proceedings and such evidence is regarded as relevant that the notice has the right to claim that he be extended the opportunity to cross-examine such witnesses so as to extend to him fair, reasonable and adequate opportunity of defence.
Therefore, the court granted the petitioner to file a final reply to the show-cause-cum-demand notice dated 24th September, 2020 within a fortnight from date.