9911796707
TMI Blog2007 (4) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... paying the requisite duty. The Tien Yuan India Private Limited manufactures "Menthol" out of the Mentha Oil and the same is exported. The said Tien Yuan India Private Limited had given disclaimer in favour of the Petitioner to enable the Petitioner to claim back the rebate of the excise duty paid by the said Tien Yuan India Private Limited on each removal of Menthol for export made on behalf of the Petitioner. 3. The Assistant Commissioner of Central Excise and Customs have been granting the requisite rebate of the excise duty paid on the goods exported by the Tien Yuan India Private Limited on behalf of the Petitioner based on the disclaimer letter given by the Petitioner in favour of Tien Yuan India Private Limited. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of the said order. 6. In pursuance of the aforesaid order dated 23rd February, 2007, the Maritime Commissioner of Central Excise had issued a show cause notice on 13th March, 2007 to show cause as to why the refund claims of the Petitioner should not be rejected on the grounds set out therein. In the said show cause notice it was mentioned that the personal hearing will be granted on 28th, 29th and 30th March,2007. The Petitioner through their Advocate had filed a reply on 22nd March,2007. On 29th March,2007 the Petitioner had attended the office of the Maritime Commissioner of Central Excise. The Petitioner was informed that the personal hearing will be given by Mr.Padmanabhan Ravikumar Nair. The Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty. 9. In view of the aforesaid, the Petitioner apprehended that said Mr.Padmanabhan Ravikumar Nair will not adjudicate the rebate claims fairly and had filed a Writ Petition No.2346 of 2007 seeking a restraint order from proceeding with show cause notice dated 13th March, 2007. It appears that said Writ Petition was served on the learned Advocate for the Respondent Mr.H.P.Chaturvedi on 3rd April, 2007. When the Petition came up for admission on 4th April, 2007 before this Court, the matter was adjourned to 11th April, 2007 on the request of the learned Counsel for the Respondents. However, in the mean while the Respondent No.3 and his subordinates were restrained from adjudicating the said show cause notice dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Senior Counsel also sought to contend that even on merit, the order is not sustainable. 16. Mr.Dada, the learned Senior Counsel contended that in this case, the bias is explicit and he emphasized that the principle of bias is not only based on the principle to avoid possibility of partial decision but also to ensure public confidence in the impartiality of the administrative adjudicatory process. Mr.Dada, the learned Counsel highlighted that the basis of the principle is that justice should not only be done, but manifestly and undoubtedly be seen to be done. Mr.Dada, the learned Senior Counsel, in this behalf relied on a judgment of the Hon'ble Supreme court in the case of Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and not by a person with preconceived notions in the matter. 19. The first principle of BIAS is that the adjudicator should be disinterested and unbiased. That the prosecutor himself should not be a judge. That the judge should be a neutral and disinterested person. That a person should not be a judge on his own cause. The main basis of this principle is that justice should not only be done, but should manifestly and undoubtedly be seen to be done. 20. Another aspect to be noted is that actual existence of bias is not necessary. The test of bias is 'real likelihood of bias.' If a reasonable person would think on the basis of the existing circumstances, that he (i.e.adjudicator) is likely to be prejudiced, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order dated 3rd April, 2007 is totally unsustainable in law. 23. Under the aforesaid facts and circumstances of the case, we feel satisfied that the acts of Respondent No.3 Mr.Padmanabhan Ravikumar Nair passing the said Order-in-Original dated 3rd April,2007 is actuated with malice and the same cannot be sustained in law. Under these facts and circumstances of the case, Rule is made absolute in terms of prayer clauses (a) and (b). 24. As a consequence of the same, we direct Respondent No.2 to depute any other Officer other than Respondent No.2 and Respondent No.3 in the Petition, to adjudicate the show cause notice dated 13th March, 2007 afresh, after affording an opportunity of personal hearing to the Petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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