TMI Blog2015 (12) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... itself. Issuance of a fresh notice not only flows from Article 14 of the Constitution but also from the provisions of the Central Excise Act. In our opinion the stand adopted by the Commissioner is nothing else but an after thought in trying to justify her action in passing an ex parte order. - Impugned order is set aside - Decided in favour of assessee. - Writ Tax No. - 771 of 2015 - - - Dated:- 17-11-2015 - Hon'ble Tarun Agarwala And Hon'ble Vinod Kumar Misra, JJ. For the Petitioner : Ritvik Upadhya, V. K. Upadhya For the Respondent : Amit Mahajan, Ashok Mehta, B. K. S. Raghuvanshi, Prateek Chandra, Vinod Kant ORDER We have heard Shri V.K.Upadhya, the learned Senior Counsel assisted by Shri Ritvik Upadhya, the learned counsel for the petitioners and Shri Ashok Mehta, the learned senior counsel assisted by Shri B.K.S. Raghuvanshi, the learned counsel for the Excise Department. The present writ petition has been filed for the quashing of the order in original dated 28.08.2015 passed by the Commissioner, Customs, Central Excise Service Tax, 117/7, Sarvodaya Nagar, Kanpur. Normally the Court does not entertain the petition where an altenative remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners pointed out paragraph no.107 of the impugned order in which it was indicated that an opporutnity was given to the petitioners at the time when the first order in original was passed and therefore, no fresh notice was required to be given. In para 109 of the impugned order, it was stated that the cross- examination is not a part of natural justice but only a procedure and therefore cross examination of a witness was not required to be given. Pursuant to our order, the Commissioner appeared and filed an affidavit admitting in paragraph 3 that the impugned order was passed without serving any notice. The officer justified her action by holding that the parties were under an obligation to appear and raise the issue before the adjudicating authority. The Commissioner further contended that it incumbent upon the parties to approach the adjudicating authority for a decision afresh, which had not been done by the assessee and since a considerable period of two and half years had elapsed and the assessee had not approached the adjudicating authority, conseuqently an ex parte order was passed. For facility, para 3 of the affidavit of Commissioner, Kanpur is extracted hereinund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 to the Additional Commissioner (Legal) asking for necessary direction to file the complaint in the back drop of the appellate order setting aside the order in original. The Additional Commissioner on the basis of an approval granted by the Commissioner, Kanpur intimated the Assistant Commissioner by letter dated 17.10.2013 to go ahed and file a complaint. It was urged that inspite of having knowledge that order in original was set aside by an appellate order, the Commissioner still went ahead to launch prosecution against the petitioner. It was further urged that after the complaint was filed on 24.2.2014, the petitioners filed an application for discharge and on the date fixed for consideration of the said application, the impugned order in original dated 28.8.2015 was filed in the court concerned without even serving the same upon the petitioner. It was urged that this was done deliberately in order to scuttle the proceedings before the Criminal Court. On this basis, the leaned counsel contends that the speed and the manner in which the Commissioner moved to save the prosecution proceedings by passing the impugned order speaks volumes by itself coupled with the fact that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if any, by the department itself. Issuance of a fresh notice not only flows from Article 14 of the Constitution but also from the provisions of the Central Excise Act. In our opinion the stand adopted by the Commissioner is nothing else but an after thought in trying to justify her action in passing an ex parte order. The Supreme Court in Ayaaubkhand Noorkhan Pathan Vs. State of Maharashtra and others, 2013(4) SCC 465 held: 24. A Constitution Bench of this Court in State of M.P. Vs. Chintaman Sadashiva Waishampayan held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examine witnesses, would violate the principles of natural justice. ( See also Union of India Vs. T.R. Varma, AIR 1957 SC 882, Meenglas Tea Estate V. Workmen, AIR 1963 SC1719, Kesoram Cotton Mills Ltd. Vs. Gangadhar AIR 1964 SC 708 , New India Assurance Co. Ltd. Vs. Nusli Nevile Wadia, 2008 (3) SCC279: (2008)1 SCC(Civ)850: AIR 2008 SC 876, Rachpal Singh Vs. Gurmit Kaur, 2009 (15) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
