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2021 (9) TMI 1543 - HC - Central ExciseViolation of principles of natural justice - ex-parte order - failure to file appeal within the stipulated period - CENVAT Credit - mentioning of wrong address in the invoice - invoice of M/s. Reliance bore address of Nagalpur unit and payment was also made from the bank account of Nagalpur unit, thus, the Cenvat credit taken by the petitioner of Dediyasan factory denied - HELD THAT:- There is gross violation of principle of natural justice by adjudicating authority in adjudicating inasmuch as submissions and evidence on record have not been considered while passing the ex-parte order on 22.08.2019. There is also non-compliance of section 35C of the Central Excise Act in conducting and concluding de novo examination after the matter was remanded by the CESTAT and therefore, there is violation of principle of natural justice - It is mandatory provision laid down under section 27C of the Act for serving any decision, order, summons or notice to the parties. In the present case, it is nowhere recorded not proved that the notice for hearing notice was sought to be served upon the petitioner firstly by tendering at the petitioner’s premises or sending by registered AD Post, or Speed Post or affixing notice at any conspicuous part of the factory or office or residential premises, of the petitioner. When the notice could be served upon the petitioner, the same can be affixed under the Panchnama in the office of the adjudicating authority. No such kind of procedure is adopted by the respondent authority. The Additional Commissioner, adjudicating authority proceeded ex-parte and mandatory provisions under section 37C is not complied with after the de-novo proceeding was initiated. The Larger Bench of this Court in the case of PANOLI INTERMEDIATE (INDIA) PVT. LTD. VERSUS UNION OF INDIA AND 2 [2015 (7) TMI 303 - GUJARAT HIGH COURT] has further observed that it is not possible to observe that in a case where the limitation period of preferring appeal or further period of condonation of delay is over, the High Court will have no jurisdiction under Article 226 of the Constitution but the exercise of such power has to be in exceptional cases where gross injustice is satisfactorily demonstrated. Otherwise, in normal circumstances, the High Court would give appropriate weightage to the statutory provisions because the things which cannot be done directly as per the statute cannot be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. The impugned order of Additional Commissioner dated 27.08.2019 is hereby quashed and set aside without entering into the merits of the matter - the present petition is disposed off.
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