Customs, Excise and Gold Tribunal - Delhi
Basant Paper Mills Ltd. vs Collector Of Central Excise on 7 November, 1986
Equivalent citations: 1987(10)ECR577(TRI.-DELHI), 1987(27)ELT358(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. This appeal is directed against the Order-in-Original No. M.P. (14/81)22 of 1983 dated 20.8.1983 passed by the Additional Collector, Central Excise, Allahabad confiscating the seized goods with an option to redeem the same on payment of a Redemption Fine of Rs. 15,000/- and also demanding duty at the appropriate rate on 75 reels besides imposing a personal penalty of Rs. 20,000/-.
2. Factual backdrops : A show cause notice calling upon the appellants to show cause why a penalty be not imposed upon them under various Rules of the Central Excise Rules, 1944 and why the seized reels be not confiscated and why duty be not demanded was issued to the appellants. The said show cause notice was served on the appellants on 30.3.82 and at the request of the appellants the time was extended upto July, 1982 for facilitating the appellants to inspect the record. On 12.4.1983 it was intimated by the appellants that since the factory of the appellants was under lock out the time may be granted to enable them to have access to the records they wished to produce. On this request the Adjudicating Authority vide his letter dated 2.5.83 intimated the appellants to show how the records were relevant to the personal hearing. In reply, the appellants submitted vide their letter dated 14.5.83 that they wished to produce order for supply of reels in question which they had taken out for transport and also several other records. On 29.6.83 when the case was taken up by the adjudicating Authority for personal hearing the appellants sought for adjournment on the ground that their excise consultant is on leave. This request, however, did not find favour with the Adjudicating Authority with the result that he proceeded to decide the case ex-parte and ultimately passed the impugned order on 20.8.1983. During the course of the arguments learned counsel for the appellants moved an application to produce the extract from the Award of the Industrial Tribunal (1) U.P., Allahabad dated 30.4.1984 to show that during the adjudicating proceedings the factory of the appellants was under lock out. Since this fact finds seeds in the adjudication order itself, the learned SDR did not object to its production. Accordingly, after hearing both the parties the application was allowed and the Award was taken on record.
3. Shri M.A. Rangaswamy, learned counsel for the appellants vehemently urged that the ex parte order is illegal as no opportunity to produce the documents as requested by the appellants. yide their letter dated 14.5.1983 was ever given, more particularly, when in that very request it was expressly made it clear that the records which the appellants wanted to produce was in the factory which is under lock out and the same, were relevant to prove the defence of the appellant, that is to say, to show that the seized reels were taken out for transport. Shri Rangaswamy further submitted that the request to adjourn the case from 29.6.83 to another date was not the proper exercise of the discretion because on that date the excise consultant of the appellants was on leave and this fact that he was on leave was never disputed by the Adjudicating Authority. In nutshell, he submitted that it is the fundamental principle of natural justice that not only the opportunity to hear should be given to the party but it should be an effective opportunity to defend. In support he cited the decision of the Hon'ble Supreme Court rendered in the case of Maneka Gandhi v. Union of India reported in AIR 1978 Supreme Court 597 (630). In reply, the learned SDR supported the impugned order and submitted that it was on account of the dilatory tactics adopted by the appellants that the adjournment was refused.
4. After giving my due consideration to the arguments- advanced by both the parties, I pronounced the order orally on 24.10.86 and ordered for the remand of the case. Here are my reasons.
5. It is true that adjournments were sought by the appellants from time to time. But a resume of the facts as stated above would show that adjournments were not sought only for the sake of delaying the proceedings. The first request for adjournment was made for inspection of the records and in fact this request was granted and the inspection was allowed. Subsequently, the request for adjournment was made by the appellants on the ground that for defending the case they required access to their own records and wanted to produce the same. But since the factory was under lock out the records were not available. This request was quite genuine and should have been accepted at that very stage by giving sufficient time. From the impugned order I observe that instead of giving the adjournment the Adjudicating Authority thought it proper to satisfy itself about the necessity of the said records for the purpose of deciding the case. To which the appellants vide their letter dated 14.5.83 explained that they wanted to produce the record to show that the seized reels in question were taken out for transport but instead of giving time to the appellants, the Adjudicating Authority straightway asked the appellants to appeal for personal hearing without records. I fail to understand that in the teeth of these circumstances how the Adjudicating Authority thought it proper to fix the case for personal hearing without records. It deserves to be mentioned here that the Adjudicting Authority had not said anywhere in the impugned order that the record which the appellants wanted to produce was not relevant. Under these circumstances asking the appellants to appear for personal hearing on 29.6.1983 without records appears to be an empty compliance to the principle of audi altaram partem - a long cherished principle. In this background I am of the opinion that no effective opportunity was ever given to the appellants to defend themselves as laid down by their Lordships of the Supreme Court in Maneka Gandhi v. Union of India, supra.
6. In the result the appeal is allowed. The impugned order is set aside and the case is remanded to the Adjudicating Authority to decide the case de novo from the stage from which it was made ex parte after giving the effective opportunity to the appellants to defend. Since I am remanding the case no separate order is required to be passed on the Cross-Objections filed by the department and the same shall be deemed to have been disposed of by this order.