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2017 (3) TMI 557 - HC - Central Excise100% EOU - breach of principles of natural justice - notice for personal hearing had not been served upon the petitioners in accordance with the provisions of section 37C of the Act - Held that: - under clause (a) of sub-section (1) of section 37C of the Act, in case of service of notice by speed post, the same has to be with proof of delivery - In the present case, it is an admitted position that the letter of personal hearing was sent to the petitioners through speed post; however, though details of date of despatch, etc. have been produced on record by the learned counsel for the respondents, including tracking number, there is no material by way of proof of delivery to the petitioners; whereas, on the other hand, it is the specific case of the petitioners that they have not received the notice for personal hearing - in the absence of any proof of delivery, it cannot be said that there is effective service of notice, as contemplated u/s 37C of the Act - the impugned order which has been passed ex parte is clearly in breach of principles of natural justice. In one single notice, a choice of three dates of hearing has been given and non-appearance on all the three dates has been considered to amount to three adjournments having been sought in terms of the proviso to section 33A of the Act - the petitioners or their representatives did not remain present on any of the dates, the adjudicating authority has proceeded further with the matter and has passed the order-in-original ex parte - is the order valid? - Held that: - by virtue of the provisions of sub-section (2) of section 33A of the Act, when a personal hearing is fixed, it is open to a party to seek time by showing sufficient cause and in such a case, the adjudicating authority may grant time and adjourn the hearing by recording the reasons in writing. However, in view of the proviso thereto not more than three such adjournments can be granted - It is not permissible for the adjudicating authority to issue one consolidated notice fixing three dates of hearing, whether or not the party asks for time, as has been done in the present case. Sub-section (2) of section 33A of the Act provides for grant of not more than three adjournments, which would envisage four dates of personal hearing and not three dates, as mentioned in the notice for personal hearing. Therefore, even if by virtue of the dates stated in the notice for personal hearing it were assumed that adjournments were granted, it would amount to grant of two adjournments and not three adjournments, as grant of three adjournments would mean, in all four dates of personal hearing. Petition allowed - matter is restored to the file of the adjudicating authority to decide the same in accordance with law - decided in favor of petitioner.
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