TMI Blog2018 (7) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial authority. Section 33-A reads that the opportunity of being heard to a party in a proceeding, if the party so desires, shall be given. Sub-Section (2) of Section 33-A mandates that if sufficient cause is shown, at any stage of proceeding, that time shall be granted for reasons to be recorded in writing. Further, it provides for three adjournments to a party, which means that adjudicating authority shall not arbitrarily curtail the opportunity, but shall give opportunity in letter and spirit. The provision, if read as a whole and cogently, compels the adjudicating authority to adhere to the principles of natural justice by affording personal hearing. When an order is passed in violation of principles of natural justice, a Writ Petition under Article 226 of the Constitution of India can be entertained. The availability of alternative remedy is not a bar for entertaining the Writ Petition. In such circumstances, the Writ Petition is maintainable. The matter is remanded back to the first respondent for consideration afresh - petition allowed. - W.P.(MD)No.12060 of 2018 - - - Dated:- 18-7-2018 - M. Govindaraj, J. For the Petitioner : Mr.A.P.Ravi For the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld also contend that the show cause notice mandated the petitioner to show cause against the notice within 30 days. As per Paragraph No.15 of the show cause notice, if no cause is shown against the action proposed to be taken within 30 days of receipt of the notice, or if they do not appear before the adjudicating authority, when the case is posted for hearing, the case would be decided exparte on merits. Therefore, according to him, after the lapse of 30 days, whether a show cause made or not, the adjudicating authority will fix a date of hearing and if the petitioner does not appear on notice, the case would be decided exparte on merits. However, in the instant case, the order in original was passed within two days after the lapse of time granted in the show cause notice. Therefore, the order passed by the first respondent is in violation of principles of natural justice, since it does not provide any opportunity of personal hearing or any opportunity to submit his objections. Therefore, it should be set aside. 6. Controverting the contentions made by the petitioner, the learned Standing Counsel appearing for the respondents would rely on Section 33-A Under Chapter VI of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014(302) ELT 228(Del)]; (12) Adhunik Power Transmission Ltd. vs. UOI [2015(325) ELT 865 (Jhar)]; (13) CC, Bangalore vs. Fly Jac Logistics Pvt Ltd [2015(323 ELT 730 (Kar)]; (14) Shrushthi Plastics Pvt Ltd vs. CCE, Puducherry [2015(323) ELT 515(Mad)]; (15) Confidence Petroleum India Ltd. vs. ADDL.C.C., C.E. S.T., Coimbatore [2015(322) ELT 237 (Mad)]; (16) General Mills India Pvt Ltd. vs. UOI [2015(322) ELT 95(Bom)]; (17) Deputy Commissioner of Central Excise, Chennai vs. Dorcas Market Makers Pvt. Ltd., [2015(321) ELT 45(Mad.)]; (18) JSL Lifestyle Ltd. vs. Union of India [2015(326) ELT 265(P H)]; (19) Panoli Intermediate (India) Pvt. Ltd. vs. Union of India [2015(326) ELT 532(Guj)]; (20) Data Field India Ltd., vs. Dy Commissioner of Customs (EOU), Chennai [2016(331) ELT 557 (Mad)]; and (21) Electronics Corporation of India Ltd. vs. UOI [2018-TIOL-484-HC- AP-CX-LB]. 9. I have considered the submissions made on both sides. 10. Admittedly, an application claiming rebate was filed by the petitioner on 02.05.2016 and pursuant to the same, a show cause notice was issued by the first respondent on 24.06.2016, which was rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board of Central Excise issues circular after circular setting out the procedures for adjudication. It only amplifies the provision, where it is silent and the provision shall not be read to give a meaning that it excludes personal hearing to those not asked for it. 13. The very issuance of the show cause notice, as specified at Paragraph No.2.1 of the Master Circular, is that the object of following the principles of natural justice is no one should be condemned unheard. In this context, we see that the Circular issued by the Central Board makes personal hearing mandatory and is binding on all the quasi judicial authorities. They cannot disobey or ignore the circular, as it has the binding force on them. 14. Coming again to the provision under Chapter VI of the Central Excise Act, 1944, with regard to adjudication of confiscation and penalties, Section 33-A reads that the opportunity of being heard to a party in a proceeding, if the party so desires, shall be given. Sub-Section (2) of Section 33-A mandates that if sufficient cause is shown, at any stage of proceeding, that time shall be granted for reasons to be recorded in writing. Further, it provides for three adjourn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining/retaining CDEC for import of hospital equipments/spares under Notification No.64/88-Cus., dated 01.03.1988. In order to comply with the principles of natural justice, two reminders were issued on 05.07.2000 and thereafter, on 28.07.2000. Almost, more than two years was spent on the proceedings. Several opportunities were given to the petitioner therein. In spite of that, the person did not appear, that is why, the Court has held that there is no violation of principles of natural justice in the absence of any response from the petitioner therein. 18. In the instant case, after giving show cause notice granting 30 days time, the authority, without waiting for any reply, on the 32nd day, passed an order. Therefore, the judgment of the Karnataka High Court cannot be applied to the case on hand. 19. Again, the learned Standing Counsel for the respondents relied on the judgment of Calcutta High Court reported in 2005(185) E.L.T. 227 (Cal.) [Nellimarla Jute Mills Co. Ltd. vs. Zonal Dir.Gen. of Foreign Trade], wherein the adjudicating authority, after lapse of time granted to the petitioner therein, has extended further time of seven days and served notice on the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not give a right to the Assessment Officer to deny opportunity of personal hearing to the assessee. 23. Insofar as the issue of approaching this Court without exhausting the alternative remedy is concerned, a Full Bench of Hyderabad High Court in Electronics Corporation of India Ltd. vs. UOI [2018-TIOL-484-HC-AP-CX-LB], at Paragraph No.23, has observed as under: 23. In the result, the reference is answered holding that the decisions in M/s.Resolute Electronics Pvt. Ltd. and Star Enterprises do not constitute good law. A writ petition would lie against an Order-in-Original, against which an appeal was filed and dismissed as time-barred or no appeal had been preferred as it would have been time-barred, provided sufficient grounds are made out warranting exercise of the power of judicial review under Article 226 of the Constitution. In this regard, it would also not be necessary for the writ petitioner to assail the orders, if any, dismissing his appeals as time-barred, be it by the appellate authority or the Tribunal, in the event, he chose to invoke such appellate remedies. 24. When an order is passed in violation of principles of natural justice, a Writ Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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