TMI Blog2017 (3) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners submitted a list of three persons whom they wanted to cross-examine. It appears that after two of the witnesses were cross-examined, the adjudicating authority, vide letter dated 9.9.2015, fixed the matter for final hearing on 22.9.2015 or 29.9.2015 or 6.10.2015. It is the case of the petitioners that their unit was closed and transferred and they did not receive the said communication and, therefore, could not attend the hearing. After a period of four months, an ex parte order came to be passed on 29.01.2016 confirming the duty liability. Being aggrieved, the petitioners have filed the present petition. 4. Mr. Devan Parikh, Senior Advocate, learned counsel with Mr. Nirav Shah, learned advocate for the petitioner submitted that pursuant to the order of remand passed by the Tribunal, the petitioner had sought permission to examine three witnesses which was granted by the adjudicating authority. However, after two witnesses were examined, the adjudicating authority issued a notice for personal hearing fixing three dates of hearing. It was submitted that on earlier occasions, the notices were also marked to the learned advocate appearing on behalf of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parte , which is not permissible in law. Reference was made to the decision of the Tribunal in the case of Afloat Textiles (P) Ltd. v. Commissioner of Central Excise, Vapi , 2007 (215) E.L.T. 198 (Tri-Ahmd. ), wherein the Tribunal has noted that the adjudicating authority had observed that in terms of the proviso to section 33A of the Central Excise Act, 1944, adjournments cannot be granted more than three times and that in view of the fact that the letter of hearing mentioned three dates viz. 10.10.2006, 17.10.2006 and 31.10.2006, it considered the appellant s request that the matter be adjourned for a month as amounting to three adjournments having been sought. The Tribunal held that giving a choice of three dates for personal hearing in one letter and seeking of one months adjournment by the appellant, would not amount to three adjournments having been sought. The Tribunal was, accordingly, of the view that the adjudicating authority s approach was not in accordance with the principles of natural justice. The learned counsel for the petitioner submitted that the above decision of the Tribunal is binding upon the adjudicating authority and hence, the notice for personal hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce addressed to one Ramchandra M. Tandel, one of the Directors of the petitioner company came to be returned undelivered , notices to the petitioner company as well as two co-noticees were duly served. It was submitted that though the notices were served upon the petitioner company as well as two other co-noticees, none of the persons who received the notices remained present or appeared and attended on any of the three personal hearing dates. It was in these circumstances that the adjudicating authority, after giving due opportunity of hearing to the petitioners passed the order-in-original dated 29.1.2016. It was further submitted that the petitioners and other conoticees have throughout appeared in the proceedings personally as well as through their learned advocate and, therefore, it cannot be said that the procedure has not been followed by the adjudicating authority before passing the impugned order. It was contended that it was the duty of the petitioners to provide any change of address during the course of proceedings and that merely because the petitioners failed to notify the authorities about change of address or shifting of premises, the adjudicating authority cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or courier referred to in sub-section (1), or a copy thereof is affixed in the manner provided in sub-section (1). 8. Thus, 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. To put it differently, service by speed post is valid provided there is proof of delivery. In the present case, it is an admitted position that the letter of personal hearing was sent to the petitioners through spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumscribes the power to grant time conferred under sub-section (2) of section 33A of the Act, by providing that no such adjournment shall be granted more than three times to a party during the proceeding. 11. Thus, 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. On a plain reading of subsection (2) of section 33A of the Act and the proviso thereto, what the same envisages is fixing a date of hearing and in case if a party asks for time and makes out sufficient cause, then to adjourn the hearing. Since the number of such adjournments is limited to three, the hearing would be required to be fixed on each such occasion, and on every occasion when time is sought and sufficient cause is made out, the case would be adjourned to another day. However, the adjudicating authority is required to give one date at a time and record his reasons for granting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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