Customs, Excise and Gold Tribunal - Delhi
Kale Khan Mohd. Hanif vs Collector Of Central Excise on 29 June, 1987
Equivalent citations: 1987(14)ECC65, 1988ECR450(TRI.-DELHI), 1987(30)ELT957(TRI-DEL)
ORDER P.C. Jain, Member (T)
1. In both these appeals learned advocate for the appellants has raised a common preliminary objection based on the violation of an important principle of natural justice. The learned advocate has urged that the hearing by the original authority, namely Assistant Collector of Central Excise in both these cases was given on 25-8-1982 by one person whereas the cases have been decided by another Assistant Collector after a lapse of about 18 months. He has further, stated that this point was specifically in appeal as a ground of appeal before the lower appellate authority whose orders are impugned before the Tribunal now. He has drawn attention to ground No. 4 in appeal before the lower appellate authority leading to the order-in-appeal No. 64-CE/KNP/86, impugned in appeal No. E/2363/86, and he has also invited attention to ground No. 6 in the other appeal before the lower appellate authority leading to the order-in-appeal No. 65-CE/KNP/86, impugned in appeal No. E/2364/86. Learned advocate has submitted that the impugned orders have been passed by the lower appellate authority without dealing with this important ground before him. On this ground the learned advocate submits that the cases deserve to be remanded to the original authority for readjudication.
2. Learned SDR, on the other hand, has read out the parawise comments submitted on behalf of the respondent Collector. The comment reads as follows :-
"(Para 2 of grounds of appeal not admitted). On 25-8-1982 the counsel of the party has cross-examined the seizing officer before the Assistant Collector of Central Excise, Division-I, Kanpur, at the time of personal hearing. The case was adjudicated by the Assistant Collector on the basis of the records as well as the principles of natural justice."
Beyond these comments learned SDR has nothing more to add.
3. I have carefully considered the pleas advanced on both sides and I find that there is a substantial force in the plea of the learned advocate for the appellants. In Aluminium Corporation of India v. Union of India and Ors. [1978 (2) ELT (3 320)], the Hon'ble Supreme Court expounding on the meaning of fair hearing was observed as follows :-
"The Government has undertaken quasi-judicial or judicial functions and a fair hearing means a hearing given, which is adequate for the purpose of bringing before the officer who makes decision, all the relevant submissions pertaining to the case. This is the least that is accepted of anyone who decides and in this case this requirement has not been fulfilled. A fresh factual evidence is brought in, and it is likely to influence the decision a fresh hearing should be given. In our opinion, there has not been a reasonable opportunity to the company and a fresh opportunity must be given." (Emphasis supplied).
Although the facts of the aforesaid case did not turn upon the fact that a hearing was given by one person and a decision was made by another officer yet the obiter pronounced by the Hon'ble Supreme Court as emphasised above is binding.
4. The question of hearing by one person and decision by another person has been directly ruled upon by the Hon'ble Supreme Court in its majority judgment reported in AIR 1959 SC 308. Para 31 of the said judgment is reproduced below :-.
"The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clearup his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We, therefore, hold that the said procedure followed in this case also offends another basic principle of judicial procedure."
5. In view of the clear ruling of the Supreme Court on the question posed by the learned advocate for the appellants the matters are remanded to the original authority, namely Assistant Collector of Central Excise concerned for a decision after affording another opportunity of hearing and of cross-examination of the witnesses and the officers making the seizure. Since the cases are old, they should be decided within six months of the date of receipt of this order by the Assistant Collector of Central Excise concerned.
6. Operative part of the order announced in the Court.