TMI Blog2019 (12) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise) in complete violation of the Principles of Natural Justice. The show cause notice dated 07.09.2016, apart from the fact that it was issued only on M/s Barshala, also called the said noticee to show cause why its licence be not suspended / cancelled - The power to suspend/cancel the licence is provided under Section 17 of the Act. This clearly is a power distinct from blacklisting as provided in Rule 70 of the Rules. The petitioner in all its replies kept insisting that no Show Cause Notice has been issued to the petitioner and that it was participating in such proceedings merely to give information as required and called upon by the Licencing Authority. In spite of these submissions, the Licencing Authority never put the petitioner to notice of allegations against it or the proposed penalty. The mere fact that the petitioner was allowed to take an inspection of all the records, cannot satisfy the test of putting the petitioner to a specific notice of allegations against it - the order dated 16.07.2019 passed by the Deputy Commissioner (Excise) was in complete breach of the Principles of Natural Justice. Alternative remedy of appeal - Section 72 of the Delhi Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shall also consider the effect of the present order on the order passed by the Commissioner (Excise). The present petition is dismissed granting liberty to the petitioner to challenge the order dated 20.09.2019, if so advised, in the form of an appeal as provided in Section 72 of the Act. - W.P.(C) 9602/2019 & CMs 39541/2019, 42717/2019, 43517/2019, 45123/2019 - - - Dated:- 19-12-2019 - MR. NAVIN CHAWLA J. Petitioner Through: Mr. Rajiv Nayar, Sr. Adv. with Mr.Ajay Bhargava, Mr.Ayush Mehrotra, Ms.Trishala Trivedi, Mr.Upkar Agrawal Mr. Saurabh Sethi, Advs. Respondents Through: Mr. Ramesh Singh, SC/GNCTD with Mr.Ishan Agrawal Mr.Dhananjaya Mishra, Adv. 1. This writ petition was originally filed challenging the order dated 05.08.2019 passed by the respondent no.1-Commissioner (Excise, Entertainment and Luxury Tax), Department of Excise, Government of NCT of Delhi, dismissing the application of the petitioner seeking stay of the operation of the order dated 16.07.2019 passed by the respondent no.3-Deputy Commissioner of Excise, Entertainment and Luxury Tax. 2. The respondent no.3 by the said order dated 16.07.2019, had blacklist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwith without giving any further notice. c) The respondent no.1 claims to have sought a report from the TCS, the Implementing Agency of ESCIMS Module of Department of Excise, GNCTD regarding the status of the bar codes of the above bottles. d) TCS in its report dated 15.12.2016, reported that while the Haywards 5000 and 10 beer bottles of Foster were supposed to be at the warehouse of the petitioner, one bottle of Foster beer was reported as damaged at bonded warehouse . e) TCS by the subsequent reports dated 08.12.2017 and 14.12.2017 further reported that bottles with the same bar codes as the 12 bottles seized were sent on 29.11.2016 to M/s Barshala from the bonded warehouse of the petitioner. f) A notice dated 13.09.2018 was issued to the respondent no.5, with a copy marked to the petitioner, by the Excise Department with a direction to appear before Licencing Authority alogwith submissions in regard to the show cause notice dated 07.09.2016 . g) The petitioner by its replies dated 27.11.2018, 18.12.2018, 04.01.2019 and 03.04.2019, supplied various information to the respondents regarding the Inquiry/Show Cause Notice. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Issue a writ in nature of certiorari or any other appropriate writ, order or direction staying the operation of the Order dated 16 July 2019 passed by Respondent No. 3; c) Issue an appropriate writ in the nature of prohibition restraining the Respondents from taking any coercive actions against the Petitioner in terms of the Order dated 5 August 2019 and Order dated 16 July 2019; d) Issue an appropriate writ directing Respondent No.1 to dispose of the Appeal within 30 days; e) Issue an appropriate writ directing the Respondent authorities to allow the Petitioner to apply for a license without being prejudiced by the Order dated 16 July 2019; f) Issue an appropriate writ directing that the Petitioner be non-blacklisted under the Excise Act. 8. A reading of the above prayers would clearly show that the same are premised on a fact that the Appeal filed by the petitioner before the respondent no.1 was not being heard. However, in the Amended Petition a substantive challenge was made to the order dated 16.07.2019 passed by the respondent no.3. In fact the entire arguments of the learned senior counsel for the petitioner revolved a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr., (1976) 3 SCC 719, Aslam Mohammad Merchant v. Competent Authority Ors., (2008) 14 SCC 186, State of U.P. v. Mohammad Nooh, 1958 SCR 595, and of this Court in L.P. Desai v. UOI Ors., 2003 (71) DRJ 553. 12. To counter the submissions of the learned counsel for the respondents on the availability of an alternate remedy against the order dated 20.09.2019 in the form of an Appeal before the respondent no.2, the learned senior counsel for the petitioner, relied upon the judgments of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1; Popcorn Entertainment Anr. v. The City Industrial Development Corporation Anr. (2007) 9 SCC 593; and Harbanslal Sahnia Anr. v. Indian Oil Corporation Ltd. and Ors., (2003) 2 SCC 107 to submit that mere availability of an alternate remedy would not bar the jurisdiction of this Court to entertain the present petition especially where the original order dated 16.07.2019 is ex-facie passed in violation of the Principles of Natural Justice. 13. The learned senior counsel for the petitioner lastly submits that even otherwise, the order dated 20.09.2019 passed by the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A/0003/1983; 5. West Bengal State Electricity Regulatory v. Impex Ferro Ltd. Ors., MANU/WB/0299/2015; 6. Canara Bank and Ors. v. Debasis Das and Ors., (2003) 4 SCC 557; and 7. Union Carbide Corporation Ors. v. Union of India Ors., (1991) 4 SCC 584. 8. United Planters Association of Southern India v. K.G. Sangameswaran Ors., 1997 (4) SCC 741. 16. The learned counsel for the respondents further submits that the test to be applied by this Court while considering the application of Principles of Natural Justice has to be influenced by the fact that the trade in liquor has been held to be res extra commercium and there is no Fundamental Right of any person to trade in the same. 17. He submits that as the power to blacklist is available in Rule 70 of the Rules, a separate Show Cause Notice warning the licencee of exercise of such power by the Department was not required. In this regard he placed reliance on the judgment of this Court in M/s Otik Hotels and Resorts Pvt. Ltd. v. Indian Railways Catering and Tourism Corporation Ltd. (judgment dated 05.10.2016 passed in WP(C) 9159/2016) and Raman Kalra v. Govt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be preceded by a show-cause notice. Law in this regard is firmly grounded and does not even demand much amplification. The necessity of compliance with the principles of natural justice by giving the opportunity to the person against whom action of blacklisting is sought to be taken has a valid and solid rationale behind it. With blacklisting, many civil and/or evil consequences follow. It is described as civil death of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts. xxxxxxxxxx 20. Thus, there is no dispute about the requirement of serving show-cause notice. We may also hasten to add that once the show-cause notice is given and opportunity to reply to the show-cause notice is afforded, it is not even necessary to give an oral hearing. The High Court has rightly repudiated the appellant's attempt in finding foul with the impugned order on this ground. Such a contention was specifically repelled in Patel Engg. Contents of the Show Cause Notice 21. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon as to whether circumstances in a particular case warrant such a penalty. There has to be due application of mind by the authority competent to impose the penalty, on these aspects. Therefore, merely because of the reason that Clause 27 empowers the Department to impose such a penalty, would not mean that this specific penalty can be imposed, without putting the defaulting contractor to notice to this effect. 27. We are, therefore, of the opinion that it was incumbent on the part of the Department to state in the show-cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same. However, we may also add that even if it is not mentioned specifically but from the reading of the show-cause notice, it can be clearly inferred that such an action was proposed, that would fulfil this requirement. In the present case, however, reading of the show-cause notice does not suggest that noticee could find out that such an action could also be taken. We say so for the reasons that are recorded hereinafter. xxxxxx 31. When it comes to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. Applying the above test, there can be absolutely no doubt that the order dated 16.07.2019 was passed by the Deputy Commissioner (Excise) in complete violation of the Principles of Natural Justice. 25. The show cause notice dated 07.09.2016, apart from the fact that it was issued only on M/s Barshala, also called the said noticee to show cause why its licence be not suspended / cancelled. 26. The power to suspend/cancel the licence is provided under Section 17 of the Act. This clearly is a power distinct from blacklisting as provided in Rule 70 of the Rules. 27. The submission of the learned counsel for the respondents that the power of blacklisting is somehow traceable to the power of suspension and cancellation of licence cannot be accepted. 28. Therefore, in the present case, the second requirement of a Show Cause Notice as laid down by the Supreme Court in Gorkha Security Services (supra) regarding setting out the proposed action, was also clearly not satisfied. 29. Apart from this, in my opinion, even the first condition of Show Cause Notice as laid down by the Supreme Court in Gorkha Security Services (supra) regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly passed in violation of a Statutory Rule and Principles of Natural Justice. 35. Equally, the submission of the learned counsel for the respondents that in presence of the power under Rule 70 of the Rules, once an act of violation is communicated, the licencee is ipso facto put to the notice that it may be blacklisted also cannot be accepted. 36. As noted hereinabove, blacklisting is one of the consequences that a licencee may be visited with for the violation of the provisions of the Excise Act and the Rules. Furthermore, the period of blacklisting can extend up to five years. It is therefore, imperative that before taking any such action of blacklisting, the licencee is put to notice that the Department intends to invoke such power and for what period. As held by the Supreme Court in Gorkha Security Services (supra), mere presence of a Clause (in this case a Rule), empowering the Authority to pass an order of blacklisting, cannot act as a substitute or as an exemption from issuing a Show Cause Notice proposing such penalty and calling upon the noticee to show cause why the same be not levied. 37. For the said reason, reliance placed by the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Institute that it is not mandatory that the Member should be heard by the Council before it proceeds to record its finding as the Member has a right to appeal against such finding. The Supreme Court relied upon the observations of Megarry, J. in Leary vs. National Union of Vehicle Builders, (1971) Ch 34 holding as under: 17. It is then urged by learned counsel for the appellant that the provision of an appeal under Section 22-A of the Act is a complete safeguard against any insufficiency in the original proceeding before the Council, and it is not mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected an publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. Not all the King's horses and all the King's men can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession, and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man's professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of appeal hearing by the City Civil Judge. The Bombay Act having assigned the duty of hearing objections to the Commissioner, he alone can hear them and not the City Civil Judge even assuming that all objections could be entertained by him in appeal. (See Shri Mandir Sita Ramji v. Ltd. Governor of Delhi.) 45. In Oryx Fisheries Pvt. Ltd. (supra), the Supreme Court reiterated that absence of reasons in the original order cannot be compensated by disclosure of reasons in the appellate order. It followed with approval the law stated in the Institute of Chartered Accountants of India (supra). 46. In Aslam Mohammed Merchant (supra), the Supreme Court held that once the Show Cause Notice issued under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 is found to be illegal, the same would vitiate all subsequent proceedings. 47. In Mohammad Nooh (supra), the Supreme Court held as under: 11. On the authorities referred to above it appears to us that there may conceivably be cases and the instant case is in point where the error, irregularity or illegality touching jurisdiction or procedure committed by an inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard before the order in original was passed whereby the aforesaid penalty was imposed upon him. The mere fact that he filed an appeal and was heard in the appeal would not alter the situation. The proceedings against him were void ab initio. Had the petitioner been issued a notice in terms of section 4L of the said Act, he could have represented against the imposition of such penalty. He could have placed on record various facts and circumstances to show that no offence was committed by the company and that even if such offence was committed by the company, he had no hand in it. All these circumstances, if he were able to establish them, would have absolve him of the liability of penalty which he now bears like a garrotter round his neck. So, even if the question of prejudice were to be taken up, it would be clear that the order in original as well as the Appellate Order imposing a penalty on the petitioner could not be sustained. 49. The learned counsel for the respondents has placed reliance on the judgment of the Privy Council in Calvin vs. Carr (Privy Council) (supra) to contend that the law stated by Megarry J. in Leary (supra) was held to be too broadly stated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a fair and full inquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision. These are all matters (and no doubt there are others) which the Court must consider. Whether these intermediate cases are to be regarded as exceptions from a general rule, as stated by Mega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technicalities and the slavish following of precedents but not one which entitles the committee to brush aside defective or improper proceedings before the stewards. The section is then required to be construed as supplemental to and not in derogation of or limited by the Rules of Racing. This brings the matter of disputes and discipline clearly into the consensual field. The Rules of Racing (Local Rules 70 to 74) allow the committee to take account of evidence already taken and of additional evidence, and confer wide powers as to the disposal of appeals. 50. In Lloyd Ors. vs. McMahon (House of Lords) [1987] 1 AC 625 relied upon by the learned counsel for the respondents, the Court of Appeal approved the dictum of Calvin (supra) and held as under: In my view in cases such as this the question the court should ask is whether, taking into account the complainant s rights of appeal, and if those rights have been exercised what happened on the appeal, the complainant, viewing the combined proceedings as a whole, has had a fair hearing? I regard this approach as appropriate because if Parliament makes provision for an initial hearing followed by appeal then wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits to be fully examined. There is no question of the court being confined to a review of the evidence which was available to the auditor. In the circumstances, it would be quite unreasonable and not in accordance with the intendment of the enactment to hold that the court, where an issue is raised as to the fairness of the procedure adopted by the auditor, is confined to a judicial review species of jurisdiction so as to have power only to quash or affirm the auditor s certificate without entering upon its own examination of the merits of the case. No doubt there may be cases where the procedural defect is so gross, and the prejudice suffered by the appellant so extreme, that it would be appropriate to quash the auditor s decision on that ground. But in my opinion the court has a discretion, where it considers that justice can properly be done by its own investigation of the merits, to follow that course. I may add that I agree entirely with all that is said upon this aspect of the appeal in the speech of my noble and learned friend Lord Bridge of Harwich. Lord Bridge of Harwich. These conclusions would be sufficient to dispose of the appeals. But I return to the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the court of law to rely on the facts found by the tribunal. And the defects in the inquiry conducted by the tribunal may be so prejudicial to the aggrieved person that the court in its discretion may decide to quash the decision and not to proceed with an appeal on the merits in the absence of the views of the tribunal after a proper inquiry. In the present case the Divisional Court was entitled to consider the appeal on its merits and on the basis of the evidence presented to the court. 52. The Division Bench of the Karnataka High Court in Sreeshyla Industries Employees Union (supra) also held that the position of law in Leary s (supra) is too broadly stated. It has held as under: 39. But, we think that what emerges from a conspectus of the case law is that the proposition in Leary s case [1971] 1 Ch 34 is too broadly stated. There are cases and cases and though no general principle of universal validity, valid for all situations cannot be predicted, yet it is possible to say, even in cases of statutory or domestic appeals, that a fair appellate procedure can cure the infirmity in the original proceedings resulting from breaches of the rules of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opportunity of oral hearing granted by the appellate authority amounted to a post-decisional hearing which obliterated the procedural deficiency of a pre-decisional hearing provided no prejudice in the facts situation of the case is demonstrated. The Apex Court held as follows:- 10. It is to be further noted that in the appeal before the Appellate Authority findings of the Inquiry Officer were challenged and, therefore, the question of any prejudice does not arise. Since employee had the opportunity to meet the stand of the Bank, it was to his advantage, and opportunity for personal hearing was also granted, though Regulation 6(18) does not even speak to grant such an opportunity. Keeping in view what was observed in B.Karunakaran s case (supra) there was no question of violation of principles of natural justice. xxxx 23. As was observed by this Court we need not go into useless formality theory in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellants unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, irrespective of the findings recorded in the domestic enquiry, the rule laid down in Ratna case will not strictly apply and the opportunity of hearing which is being provided to the respondent at the appellate stage will sufficiently meet his demands for a just and proper enquiry. 55. The Supreme Court in Union Carbide Corporation (supra) also observed that the principle in Leary (supra) might perhaps be too broad a generalization. I may herein quote from the said judgment: 165. We might recall here that the Privy Council in Calvin v. Carr had expressed its reservations about Megarry J. s General Rule in Leary case. However, the reservations were in the area of domestic jurisdiction, where contractual or conventional rules operate. The case did not involve a public law situation. But the House of Lords in Lloyd v. McMohan applied the principle to a clearly public law situation. The principle in Leary might, perhaps, be too broad a generalisation. 56. Recently the Supreme Court by its judgment dated 30.04.2019 passed in Civil Appeal No. 4476/2019 63 Moons Technologies Limited vs. Union of India and Others considered the above issue as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases as mentioned in Sir William Wade s erudite and classic work on Administrative Law (5th Edn.). But as that learned author observes (at p. 487), in principle there ought to be an observance of natural justice equally at both stages , and if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial. And he makes reference to the observations of Megarry, J. in Leary v. National Union of Vehicle Builders [(1971) 1 Ch. 34, 49]. Treating with another aspect of the point, that learned Judge said: If one accepts the contention that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shanti Bhushan, stating that a defect of natural justice always goes to the root of the matter. Ultimately, given the fact that the settlement fund was held to be sufficient to meet the needs of just compensation to the victims of the Bhopal gas leak tragedy, it was held that the grievance on the score of not hearing the victims first would not really survive. However, what is of fundamental importance is the fact that in the present situation, a clear statutory right is given to every member or creditor who shall be entitled to an assessment of compensation, first by the prescribed authority and then, a right of appeal to the Appellate Tribunal. In such cases, therefore, the orders of non-assessment by the prescribed authority can more appropriately be challenged in judicial review proceedings, in which the High Court, acting under Article 226 of the Constitution of India can, if an infraction of Section 396(3) is found, send the matter back to the prescribed authority to determine compensation after which the right of appeal under sub-section (3A) of Section 396 would then follow. In fact, in Writ Petition 2743 of 2014, which challenged both the draft order and the final order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calvin should be applied in a particular situation. It is suggested that in India, the Leary principle should be applied in most of the situations as it is necessary that the initial decision making bodies are made to follow the principles of natural justice rather meticulously. The Calvin principle will introduce too much uncertainty into the law. Also, in India, adjudication is done primarily by government bodies, its officials and statutory bodies which fall outside the pale of the Calvin principle. Even the professional bodies, like the Institute of Chartered Accountants, are statutory bodies and not consensual bodies. The Calvin principle may be applied, if at all, to bodies like clubs and associations which a person joins, and voluntarily accepts the rules thereof. 58. From the above it would be evident that the general rule is that where there is a violation of Principles of Natural Justice, the High Court while exercising its extraordinary powers under Article 226 could not relegate the aggrieved party to the appellate remedy as mere availability of a right of appeal cannot absolve the original authority to follow the Principles of Natural Justice. 59. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any decision or order passed under this Act by the Excise Commissioner may appeal to the Financial Commissioner. (4) Such appeal shall be filed within thirty days from the date of communication of such decision or order together with self-attested copy thereof: Provided that a further period of thirty days may be allowed if the appellant establishes that sufficient cause prevented him from presenting the appeal within the aforesaid period of thirty days. (5) At the hearing of an appeal, an appellant may be allowed to go into any ground not specified in the grounds of appeal or take additional evidence if necessary, if it is established that such omission was not wilful or unreasonable. (6) The appellate authority, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order, as the case may be. (7) The appeal shall be heard and decided within one year from the date on which such appeal is filed: Provided that if an appeal is not decided within one year the relief prayed for in the appeal shall be deemed to have been granted. 62. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h circumstances, Doctrine of Election would clearly become applicable. If the petitioner is aggrieved of the order dated 20.09.2019, its remedy would be in form of filing of an appeal against the same before the Financial Commissioner. 67. In Whirlpool Corporation (supra), Popcorn Entertainment (supra) and Harbanslal Sahnia (supra), the Supreme Court has held that existence of alternative remedy would not operate as a bar inter alia when there is a violation of the Principle of Natural Justice, however, in the present case, the petitioner having itself availed of the alternative remedy, must be relegated to the same. 68. As far as the submission of the learned senior counsel for the petitioner that the penalty imposed by the order dated 20.09.2019 is also disproportionate, in my view, the same also can be considered in an appeal filed by the petitioner as it would necessarily require examination of facts that are pleaded for and against such penalty. I, therefore, refrain from making any further comments on the merits of such submission except observing that while considering such issue, the Financial Commissioner shall also keep in mind that the petitioner wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, raised its defences, and also gave written submissions denying liability and malafide on its part. 37. Thus, it cannot be said that the Appellant was in the dark about any allegation against it or that it was caught by surprise during the proceedings. In such circumstances, it cannot be held that there was any failure of natural justice with respect to the Appellant. Thus, this contention of the Appellant is accordingly rejected. 70. In view of my findings hereinabove, the finding of the Commissioner (Excise) rejecting the submission of the petitioner of violation of Principle of Natural Justice by the Deputy Commissioner of Excise, cannot be sustained and is accordingly set aside. However, as the Commissioner (Excise) has also considered the submissions of the petitioner on merits against the allegations made against it, the petitioner may challenge the same in an appeal filed under Section 72 of the Act. In such appeal, the Financial Commissioner shall also consider the effect of the present order on the order passed by the Commissioner (Excise). 71. In view of the above, the present petition is dismissed granting liberty to the petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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