Adjudication 

Manual 1988 
 
For Departmental use only

MANUAL OF DEPARTMENTAL INSTRUCTIONS ON ADJUDICATION

CHAPTER IV

THE HEARING

18(i) Grant of hearing before adjudication of the case: - In a customs

case the Calcutta High Court decreed the case against the Government on
the ground that the dictates of natural justice had not been followed in as
much as only a mere “Show cause notice” was issued and full opportunity for
personal hearing was not given to the party. It was after the pronouncement
that a specific provision was made in the “Show cause notice” itself requiring
the party to show his intention for a personal hearing. In departmental
adjudication, therefore, if the party concerned, makes a request for personal
hearing, and after such request, fails to attend the date and place appointed
for the hearing, the case should then be adjudicated on the basis of evidence
available on record. If, however, the party requests for adjournment and
asks for some other date for the purpose of hearing, it would be in the
discretion of the adjudicating authority to grant the request of the party and
to fix some other date for hearing if the adjudicating authority is satisfied
that the ground for adjournment is genuine. Normally an adjournment
should not be refused unless there are compelling reasons warranting such a
course of action.

Under the Customs Act, 1962, the owner of the goods or person against
whom the action is proposed to be taken is given –

(a) a notice in writing informing him of the grounds on which it is

proposed to confiscate the goods or to impose a penalty;
(b) an opportunity of making a representation in writing within such
reasonable time as may be specified in the notice against the
grounds of confiscation or imposition of penalty mentioned therein;
and

provided that the notice referred to in clause (a) and the representation
referred to in clause (b) may, at the request of the person concerned be
oral.

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18(ii) The party is required to make detailed written submission in reply to
the show cause notice and personal hearing is basically meant to clarify what
has been stated in his written submission. Consequently, it is not
appropriate if the party does not give the detailed written submission while
replying to the show cause notice. Moreover, verification of factual position
should also be limited with reference to the show cause notice issued.

(F.No. 208/5/80-CX6 dated 8th October, 1980)

19. Record of personal hearing: - It is necessary that a brief record of

the hearing should be maintained on a separate sheet and this sheet should
be kept on the relevant file. The following particulars must always appear on
the record of personal hearing. The procedure should be followed in respect
of personal hearing, if granted, at the stage of appeal or revision petition
also.

Record of Personal Hearing

File no. _____________ Date: ________________ Time: ____________

Messrs. _______________________

Represented:

(i) _______________________

(2) ________________________

(Signature) etc.

Also present (Name of Departmental Officer if any, in addition to the

adjudicating officer).

Party reiterates the argument in his letter dated ______________

OR

Party contends that _____________________ (brief record of arguments

advanced) ___________________________________________

Finally

He has nothing more to add.

(Signature of the Adjudicating Officer and Date)

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20. Appearance of pleader at Personal hearing: - In fairness to the

party and in accordance with the principles of natural justice the alleged
offender should be allowed to put his case fairly and fully and if he so
desires, with the help of a counsel. The adjudicating authority should in his
discretion decide whether, having regard to the facts and complexity of the
case under consideration, assistance of a legal practitioner should be
regarded as part of reasonable opportunity or not. The principle should be
applied to the case as a whole and a decision should be taken on the facts
and circumstances of the case as to whether a legal practitioner should or
should not be allowed to assist the party in the adjudication proceedings. It
is, therefore, necessary for the adjudicating authorities to ensure that legal
practitioners are not allowed to appear before them except with their specific
permission. The adjudicating authorities should, however, be liberal in
permitting the appearance of legal practitioners in complicated and
important cases and in cases involving heavy stakes. Care should, however,
be taken to see that the proceedings do not take the form of judicial trial.

21. Adjudicating Authority should himself hear: - It would be

inappropriate for the adjudicating authority to delegate the function of
personal hearing to an officer subordinate to him. Apart from the question
whether it would be legally correct for the adjudicating authority to hear the
parties through an officer subordinate to him, the party concerned would not
have full satisfaction if he is heard by an officer other than the one who has
to adjudge the case. Since hearing is a process essentially concerned with
the adjudication of the case it would be only right for the authority
competent to adjudicate the case to hear the party himself and to record a
judgement. In personal hearings the parties concerned should be heard as a
matter of policy by the adjudicating authority himself and not through the
officers subordinate to him.

21A. Cancellation of Personal hearing once fixed may be avoided as

far as possible: - In cases where it becomes necessary, prior intimation of
such cancellation, wherever so possible may be given to the assesses/their
local representatives.

(Circular no.50/85 CX.6 F.No.208/26/85CX.6)

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22. Grant of Personal hearings in Appeal Cases: - There is no hard and
fast rule that the applicant must be heard in person or through his counsel.
In personal hearing the parties concerned should be heard as a matter of
policy by the Appellate authority himself.

23. Grant of Personal hearing before the actual dispatch of the

Adjudication Order or the Appellate Order: - There may be cases where
the adjudication order has been passed, draft approved but not dispatched
or that the order-in-appeal has been passed but not dispatched, when the
party concerned makes a request for personal hearing. In such cases where
the party’s request for personal hearing is received before the actual
dispatch of the order-in-original or the order-in-appeal, as the case may be,
personal hearing should invariably be granted.

24. Time Limit for issue of Adjudication Orders: - If for certain reasons,
the adjudication orders cannot be issued within five days from the date of
hearing because the case is complicated, the order should be issued in
fifteen days or one month from the date of hearing.

(F.No.208/5/80CX.6 Circular No.32/80)

25. Cross-examination of Witness in Departmental Adjudications: -

(i) Permission to cross examine and refusal of such permission: - Recent
pronouncements by some of the High Courts and the Supreme Court hold
that in quasi-judicial proceedings where the evidence of any person is relied
upon the party concerned must be given an opportunity to test such
evidence either by cross-examination or otherwise. Since adjudications of
Customs and Central Excise cases are of a quasi-judicial in nature, denial of
an opportunity to cross-examine the Department's witnesses by the party
concerned may amount to violation of the principles of natural justice. The
adjudicating authorities should not, therefore, reject requests for cross-
examination of witnesses as a matter of course, but should consider such
requests on merits.

Adjudicating authorities should necessarily exercise caution against

permitting cross-examination indiscriminately. Where, for instance, there is
a question of calling informers for cross-examination or producing
businessmen to substantiate the information gathered from them in the
course of confidential enquiries whereby the public interest is likely to suffer,
the request for cross-examination need not be conceded by the adjudicating

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authorities. Similarly, when production of witnesses would entail expense or
effort not commensurate with the value of the evidence the witnesses are
likely to give, having regard to the facts and circumstances of the case
cross-examination need not be permitted. Other instances of this type would
be cases where the witnesses are close relatives or dependents of the party
concerned whom he can produce himself of when it is not possible to
produce the witnesses at the time of personal hearing for any reason, or
when the witnesses had already been examined by the party concerned
during the course of any enquiry under the Customs Act, 1962. Similar other
circumstances may also arise when the request for cross-examination need
not be entertained.

In any case, the department is not bound to offer for cross-examination any
witness whose statements have not been relied on in the show-cause notice.
However, for purposes of administrative record, it will be necessary in all
cases to record briefly in writing the reasons for refusal of the request. Like
personal hearing, cross-examination need not be granted unless specifically
asked for by the party.

(b) Witness - who should produce - It will be the responsibility of the

Department to produce its witnesses whose cross-examination is permitted
by the adjudicating authority. The expenses, if any, for the production of
such witnesses will have to be borne by the Department itself
(F.No.4/61/61-Cus.VI).

25A. Statement - recorded by Police Officers - Admissibility of: - The

statement recorded by Police Officers are admissible in Adjudication
Proceedings and are not to be ruled out on the sole ground that they have
been made to officers of the Police. It would be for the Adjudicating
authority in each case to examine the probative value to be attributed to the
confession.

26. Cases beard by one Collector but not finally Disposed of -

Necessity for rehearing by the Successor before making Pinal
Orders: - Whenever a personal hearing has been asked for, the adjudicating
officer should himself hear the party before giving the decision in the case.
Where an outgoing officer had given a personal hearing but had been unable
to issue the, final orders, the successor in office must offer a personal
hearing again before the formal order is actually issued. It is; however, open
to the party concerned not to have a further hearing after it has been

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offered to him. In case other offer is not availed of by the party, the fact of
the offer and it’s not being availed of should be put in writing in the
appropriate case records.

(F.No.100/1/62.LC1). 

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