9911796707
TMI Blog2021 (4) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... engineer having experience in manufacturing of electric products. The petitioner was with one M/s. W.S. Industries Unit for over three decades. M/s. W.S. Industries Group was manufacturing range of products for Transmission and Distribution Applications of Power Sector. 2.2. The petitioner joined Diamond Power Transformers Ltd. (DPTL), Vadodara in August, 2012 as a Director (Operations). He was only an employee with designation as Director (Operations) and has no Board of Directors level position in DPTL. He was heading the operations of the transformer business, more on power transformer business for power transformer of unit-II and overseeing operation of distribution transformer of unit-I. It was 100% subsidiary of the Diamond Power Infrastructure Ltd. (DPIL), Finance and Accounts, Excise, Sale Tax, Service Tax, etc. under the preview of corporate office. 2.3. The DPTL owned two units, first one located at Ranoli, District Vadodara, Gujarat and the second unit located at Village Samiyala, Padra Taluka, District Vadodara. The petitioner was functioning from Samiyala factory of DPTL. 2.4. It is the case of the petitioner that the officers of the Directorate General of Goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal penalty has been imposed on the petitioner without following any principles of natural justice. He has reiterated his stand that he was only a technocrat in the company and for any contravention made by the company, he cannot be held liable. It was a penalty upon the person taking or utilizing the cenvat credit wrongly or illegally under Section 15 of the Cenvat Credit Rules. He being an employee could not have been saddled with the huge responsibility and this is a clear non application of mind, and that too, by clear breach of principles of natural justice. 2.8. It is also his case that though the appeal is available against this order in original before the CESTAT, there is a mandate of pre-depositing of 7.5% of the amount of penalty. Moreover, this being a challenge to the non-observation of the principles of natural justice, there is a need for the Court to entertain this petition without insisting on the taking recourse to the alternative remedy. 3. On issuance of notice, the respondents have appeared and filed the affidavit-in-reply. The same has been filed by Dr. Satish Dhavale, Commissioner, Central GST & Central Excise, Vadodara-I denying all the averments in tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses manned by a security official. In absence of any authorized person to receive the personal hearing notice, the same could not be served upon the person and hence, it was pasted on the door of DPTL. It is therefore the say of the respondent that not only the personal hearing was granted to the all notices, the date of fixing the hearing on four occasions were also send to the last known address of the noticees. 3.3. So far as his having left the services of the company in June, 2016, it is the say of the respondent that it is absurd to believe that the department would have knowledge of his whereabouts and his having left the services of the company unless the same would have been communicated by the company in their defence reply to the show cause notice. 3.4. According to the respondent, the fraudulent availment of cenvat credit without physical receipt of material was known to both i.e. the present petitioner - Director of Operations and to the Chief Administrative Officer of M/s. DPTL Shamiyala and hence, they have been held liable for penalty separately under Rule 15(1) of the Cenvat Credit Rules 2014. The physical stock verification was done by them and the Panchnama was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arks 'Left' and therefore, the notice has been affixed on the last address available with the department on his having left the concerned company. 7. We have extensively heard learned advocate Mr. S.S.Iyer for the petitioner who has emphasized on various issues, however, his essential emphasis was on the breach of principle of natural justice. He along the line of memo of petition has urged that since it is a personal penalty imposed under the Cenvat Credit Rules 2004, the issuance of show cause notice to the petitioner and the availment of opportunity of personal hearing was a must. According to him, there was no role played in the evasion of duty by the petitioner and any of the contraventions of the provisions of law or the rules cannot in any manner saddle any liability upon the petitioner. However, without entering into the merits of the matter, he has urged this Court that the order in original cannot be sustained for not having issued the show cause notice and in absence of any such proof of service on the part of the respondent. And also, for not having availed any opportunity of hearing, the order-in-original needs to be quashed so far as the present petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led against. The Central Excise Act, 1944 were amended by the Parliament of India in the year 2014 and the right to appeal has been restricted till an appellant pays the pre-deposit. These provisions are absolute and no discretion has been vested to relax these provisions to any authority to allow hearing of appeal unless the statutory pre-deposit is paid. 11. On the part of the respondent, it is urged that indirectly by invoking extraordinary powers of this Court under Article 226 of the Constitution of India what is being sought is to overreach the process of Section 35(F) of the Central Excise Act. We are conscious of the fact that the provisions of Section 35(B) stipulates that any person if is aggrieved by the decision or order passed by the Principal Commissioner of Central Excise or Commissioner of Central Excise acted as adjudicating authority, can appeal before the CESTAT. This Court could have relegated the present petitioner to CESTAT instead of entertaining this petition, however, noticing the settled position of law that when there is a gross and clear violation of principles of natural justice, despite the availability of the alternative remedy, writ petition under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing, the very service of the show cause notice is also seriously questioned and we also could notice from the pleadings before us that neither the show cause notice was served upon the petitioner nor was he served notice of personal hearing. As the director of the company, even if his conduct is found questionable and worthy of initiating any legal proceedings personally, giving of opportunity to the company or affixing show cause notice and the notices of personal hearing of the director at the company premise would not simply amount to appropriate or sufficient service to the present petitioner. It is to be noted that show cause notice is of the year 2017 and the petitioner was in service only till 2016. Till he was in the service, as averred in the petition, no show cause notice had been issued and this aspect remains undisputed from the reply of the respondent authority. More particularly, when the order impugned is duly served upon his personal address at Chennai and if that could be done, there was no earthly reason as to why at an earlier point of time, show cause notice and other notices of hearing could not have been served upon him. Again, there is nothing to indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
