1. C/Stay/412/88/MAS.: - Since we propose to dispose of the appeal itself today on a short question of law, we grant waiver of pre-deposit of duty and penalty pending disposal of the appeal today.
2. C/Appeal No. 320/88/MAS : - This appeal is directed against the order of Collector of Customs, Cochin, dated 18-2-1988 confirming his earlier order dated 14-11-1986. Proceedings were instituted against the appellants herein on charges of mis-declaration in regard to export of full chrome wool sheep grain finished lining leather in March, 1986 resulting in an order of adjudication at the hands of the Collector of Customs, Cochin, dated 14-11-1986 under which he ordered duty @ 15% for the entire goods covered by six Shipping bills specified in the impugned order besides levying personal penalty of Rs. 3 lakhs under Section 114 of the Customs Act, 1962 the 'Act' for short. The appellants herein preferred appeal against the original order of adjudication before the Tribunal and the tribunal on consideration of the entire matter disposed of the appeal by its order dated 14-10-1987 in Order No. 732/87. The Tribunal in its order referred to supra dealt with the question as to whether reliance placed by the Department on the report of the CLRI for fastening duty liability as well as imposing penalty was sustainable without consideration of the plea of the appellants for cross-examination of the CLRI Expert. The Tribunal observed as follows: "The appellants on the other hand have asked for cross-examination of the CLRI personnel and in the submissions made by the Counsel before us the reason why such a facility ought to have been given to them had been elaborately adverted which we find, do have some force. Since this is fundamental to the whole case, and as a specific plea had been made before us in this regard that the principles of natural justice have not been complied with, it will be appropriate and in the interests of justice that the adjudicating should go into the submissions in this regard made by the appellants viz. the plea for the cross-examination of the CLRI personnel and give his considered finding thereon, after giving the appellants an oppor- tunity of personal hearing and in accordance with law. The case is accordingly remanded to the Collector of Customs, Cochin, in the above terms." 3. Pursuant to the above order of remand of the Tribunal, the Collector of Customs took up adjudication and apparently considered the plea of the appellants for cross-examination of the CLRI expert tenable and issued summons to the expert, but no body from the CLRI was made available for cross-examination by the appellants. The adjudicating authority having regard to this aspect of the matter has observed in the impugned order as follows :- "However, in view of the observation of the CEGAT, an attempt was made to call personnel from CLRI. The CLRI vide their letter dated 22-12-1987 have politely regretted their inability to appear before any Tribunal or other authority to give evidence. This is as per condition appearing in their test report, which clearly says that opinion is technical and academic and not intended for publicity, advertisement and legal purposes. Hence, the adjudicating authority is helpless in fulfilling the request of the party to cross-examine the CLRI personnel." 4. The adjudicating authority having come to above finding has again chosen to uphold his earlier order imposing duty liability with penal consequences on the appellant. The Clause appearing in the test report of the CLRI is that their "opinion is technical and academic and not intended for publicity, advertisement and legal purposes". The CLRI cannot take advantage of this Clause in their report for avoiding cross-examination. It is well settled that if any reliance is placed on the expert report, as has been in this case by the Collector, and if the report of the CLRI expert is challenged by the aggrieved party and if the aggrieved party wants to avail of the opportunity to cross-examine the expert in question regarding correctness of the analysis, such an opportunity should be afforded to the aggrieved person. This is a basic facet of law conforming to principles of natural justice and principles of natural justice ordain that opportunity of cross-examination be afforded by Quasi-judicial authorities of third parties or experts on whose opinion reliance has been placed against the party in adjudication and this legal position is no longer res integra and is well settled by the judicial pronouncements of the Supreme Court. It is most unfortunate and regretable in the extreme that an expert body like CLRI when summoned by the Collector should choose to defy the summons and would not even find it convenient to send any of its officers. The CLRI is a research Institution of the Government of India and particularly in matters where opinion of the CLRI by analysis of samples is sought for, the CLRI while giving the report should also make it convenient to send one of its officers to testify when summoned for cross-examination. The condition in the test report that the same is academic and cannot be used for legal purposes obviously indicates that even if the expert opinion is found to be erroneous or wrong, the expert cannot be proceeded against for damages in any Court of Law. The report of the CLRI cannot be taken as a conclusive piece of evidence when the same is challenged and sought to be disproved in cross-examination because the expert however competent he might be cannot claim in-falliability.
Unless there is express provision in law about the conclusiveness of the report of the expert, one cannot presume the report of the expert as conclusive. The expert opinion is only a relevant piece of evidence and it is ultimately for the Quasi judicial authorities to adjudge the correctness of the same by application of their mind having regard to the facts and circumstances of each case.
5. In the case of domestic inquiry by the employers for taking disciplinary action against their employees in the area of labour-management relations, and also in disciplinary proceedings initiated by the Government against Civil Servants or by a Statutory Corporation against its employees the right of cross-examination has been regarded as an essential content of natural justice. It is an elementary principle that person who is required to answer charge must know not only the accusation but also its testimony on which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and put such relevant questions by way of cross-examination as he desires. This is the barest requirement of an Inquiry in proceedings which are penal in nature where penal consequences are sought to be fastened on a person on the basis of the report of an expert which has been challenged by a party in whose favour right of cross-examination was also acceded to by the adjudicating authority and infraction of this requirement would tantamount to traversty of the principles of natural justice. It would be relevant to note that in regard to the certificate or opinion given by the CLRI in the instant case, no conclusiveness is attached to the same nor examination of such expert expressly excluded under any Statute. Reports of Government Scientific experts such as Chemical Examiner, Officers of the Mint or Indian Security Press, Public Analyst, Chief Inspector of Explosives, Director of Finger Print Bureau and Director of a Central or a State Forensic Science Laboratory, and Serologist to the Government are normally used as evidence before Courts in Inquiry or trial but if the Courts think it fit the Courts may summon and examine any such expert as to the subject matter of his report. Even if the report of the CLRI is admissible in evidence, its probative value depends upon several circumstances, such as data available, the method of analysis, the fulness of the conclusion, and speaking generally, the vulnerability to which the expert's premise is subject. In our opinion, if the right of cross-examination of the CLRI officer is denied to the appellants, it would amount to denial of natural justice.
6. Unfortunately, in this case the finding of the adjudicating authority is mainly based on the test report of the expert as could be seen from the orders of the adjudicating authority referred to supra.
Since the expert could not be made available for cross-examination in spite of summons having been sent by the Collector of Customs, the only course open to the adjudicating authority in such circumstances would be to proceed with the adjudication de-hors the report of the expert.
But in the present case notwithstanding the fact that the CLRI did not respond to the summons of the Collector of Customs, by sending any of its expert, the adjudicating authority has chosen to place reliance against the appellant, on the opinion of the expert body. Such a course apart from being violative of principles of natural justice, is not, permissible in law. Therefore, without expressing any opinion on the merits of the issue, on technical grounds, we hold that the impugned order appealed against is violative of principles of natural justice and cannot be sustained. Since already the matter has been remanded once, we do not think it would be just and proper to remand the matter once over in the context of the case. We are, therefore, constrained to set aside the impugned order in the above circumstances. We accordingly set aside the impugned order appealed against and allow the appeal.
7. We also direct that copy of the judgment be marked to the Ministry of Finance as well as the concerned Administrative Ministry so that such issues which are likely to crop-up in Customs adjudication could be considered and suitable instructions issued.