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2015 (8) TMI 633 - GUJARAT HIGH COURT

2015 (8) TMI 633 - GUJARAT HIGH COURT - 2015 (324) E.L.T. 282 (Guj.) - Validity of order of the tribunal - The matter was heard by the Member (Judicial) of the Tribunal, however, the decision has been delivered by the Member (Technical) of the Tribunal, who had never dealt with the case in past. - Clandestine removal - Recovery of note book - invoice with new serial number inserted - Held that:- when the appeal was already heard and reserved for orders and the Member (Judicial) of the Tribunal h .....

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iation V. Designated Authority and Ors. reported in [2011 (1) TMI 7 - SUPREME COURT OF INDIA] and in the case of Union of India & Ors. V. Shiv Raj & Ors. reported in [2014 (5) TMI 1036 - Supreme Court Of India]. The Member (Judicial) of the Tribunal was the best person to decide the matter only after getting some clarification, which he intended to get from the either party as he had put remarks on 25.10.2013. - order impugned in the petition is required to be quashed and set aside - matter rema .....

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t(s) No. 2 JUDGMENT ( Per : Honourable Mr. Justice A. J. Desai ) 1. Heard learned advocates for the respective parties. 2. Rule. Mr. Lodha, Central Government Standing Counsel waives service of notice of Rule on behalf of respondent No. 1 and Mr. R.J.Oza, learned Senior Advocate waives service of notice of Rule on behalf of respondent No. 2. 3. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. 4. By way of the present petition filed u .....

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dent - revenue. The petitioner has requested the Court to exercise its extra ordinary power under Article 226 of the Constitution of Indiamainly on the two grounds, which are as under. (i) Though, the matter was heard and was kept for order, the same was again taken up for hearing and was decided in absence of the petitioner (original respondent No.1) (ii) The matter was heard by the Member (Judicial) of the Tribunal, however, the decision has been delivered by the Member (Technical) of the Trib .....

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2622.4kg. with invoice No. 173 dated 20.03.2004, which was in the opinion of the officers of the respondent department found to be tempered with. 5.2. A show cause notice was issued to the petitioner. Subsequent to production of documentary evidence, the Additional Commissioner, Central Excise, Ahmedabad - III dropped the proceedings by order dated 06.05.2005, which was challenged before the Commissioner of Central Excise (Appeals) who confirmed the order passed by the authority. Both the orders .....

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e, this petition. 6. Pursuant to notice issued by this Court, respondent have filed affidavit-in-reply and there to, affidavit-in-re-joinder has been filed by the petitioner. 7. Mr. Dhaval Shah, learned advocate for the petitioner would submit that though the matter was heard by the Member (Judicial) of the Tribunal, the matter was again listed before the Member (Technical) of the Tribunal on 07.3.2014, of which the petitioner was not aware about the date of hearing and therefore, the matter was .....

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the order sheet that the matter be re-listedon the board for certain clarifications. Instead of re-listing the mater on board of the Member (Judicial) of the Tribunal, the same was listed before the Member (Technical) of the Tribunal, who had ultimately decided the matter in absence of the petitioner or his advocate. 9. In support of his case, he has also produced order sheet, Rojkam of 20.09.2013 as well as 07.03.2013, which shows the dates of listing the matter on board. 10. Learned advocate f .....

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v Raj & Ors. reported in (2014) 6 SCC 564 and submitted that the order impugned in this petition be quashed and set aside and the matter be remanded for fresh consideration. 11. As far as first contention raised by the petitioner is concerned, Mr.R.J.Oza, learned senior advocate, appearing for respondent No. 2 would submit that first contention raised by the petitioner is without any basis since a notice, for fresh hearing, was issued to the petitioner by UPC and the same was received on beh .....

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ld submit that since the petitioner was aware about the notice of fresh date, he should have appeared before the Tribunal and ought to have argued the matter on merits. He would further submit that neither the petitioner nor his advocate remained present on the date of hearing on 07.03.2014 and therefore, the petition is merit less and is required to be dismissed. 13. We have heard learned advocates for the respective parties .Perused the order sheet, Rojkam dated 20.09.2013 and07.03.2014. It ap .....

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