TMI Blog2021 (10) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 4,50,000/-. Any penalty imposed personally on the person cannot be saddled, unless due opportunity is given. Here not only there is a question of availing opportunity of hearing, 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. There is nothing to indicate as to how this affixing at company premise should be construed as sufficient notice to the petitioner nor is it found on record from any document that he was made aware of the show cause notice which led to the order impugned and therefore, merely because in reply to another show cause notice, he has been made aware also cannot furnish the ground to assume that he was aware of the show cause notice, the order of which is impugned in this matter. Such assumption and presumption are absent in the statute and they cannot furnish the basis to sustain the order of huge amount of personal penalty. The foundation of principle of natural justice is audi alteram partem, the necessity of grant of opportunity of hearing and no party is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara, 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 Services Tax Intelligence, Vadodara Regional Unit undertook search operations at the factory premises of DPTL on 23.09.2014. It is urged that the officer searched both the factory premises of DPTL and resumed voluminous documents alleged to be incriminating in nature. Various statements have been recorded of the different persons which included the petitioner also. He later on left DPTL in June 2016 due to ailment of his mother and settled in Chennai. He has filed form No. 26AS with Income Tax Department to substantiate this version of his. According to him, no notice had been received from the respondent nos. 2 to 4 till his date of retirement. 2.5. It is the say of the petitioner that show cause notice issued in the year 2017 by the respondent No.2 The Additional General of DGGSTI, Zonal Unit, Surat, has not been received by the petitioner and it was the duty of the respondent No.3 to to verify the service of show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner in complete breach of principles of natural justice and order of imposing personal penalty on the petitioner is illegal and unfair, as there can be no adjudication of show cause notice without service of notice with all relied documents and personal hearing of the notices. Moreover, this being a challenge to the non-observation of the principle of audi alterum partum there is need for the court to entertain this petition. 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-II denying all the averments in toto. 3.1. The preliminary objection is with regard to the maintainability of the present petition is raised by the learned counsel for the department and has stated that as per Section 35(B) of the Central Excise Act, 1944, the petitioner has alternative remedy before the Customs, Excise Service Tax Appellate Tribunal by filing Appeal. It is only in order to avoid the pre-deposit to the that the writ petition has been chosen to overreach the process mandated under the law, which should not be permitted. It is also emphasized t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal hearing to the known address of the petitioner and the same have been returned undelivered by the postal department. As per the records of the Adjudicating Authority, the respondent No.3, the residential address of the petitioner at Chennai was not available and hence letters of personal hearing could not send to the said address and hence there is no violation of principle of natural justice. 4. 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 upon the petitioner, 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 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 Article 226 requires to be entertained. The petitioner when claimed violation of natural justice and non affording of opportunity of hearing, to that limited extent, this Court can entertain writ petition. It, however, would allow the liberty to the respondent to follow the law and proceed. 12. We have chosen not to enter into the merits of the matter but having noticed from the entire gamut of facts that the petitioner had alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 as to how this affixing at company premise should be construed as sufficient notice to the petitioner nor is it found on record from any document that he was made aware of the show cause notice which led to the order impugned and therefore, merely because in reply to another show cause notice, he has been made aware also cannot furnish the ground to assume that he was aware of the show cause notice, the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto uncontroverted legal position that where a statute is required to do something in a certain way, the thing must be done in that way or not at all. The other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal position is based on a legal maxim expressio unius est exclusio atlerius , meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following other course is not permissible. 12. Following the principle explained by this Court, in the case of M/s.Darshan Boardlams Ltd. v/s. Union of India, 2013 (287) ELT 401 (GUJ.) we are of the view that we should not decline to entertain this writ-application on the ground that the writ-applicants have a remedy of preferring an appeal before the appellate tribunal under Section 35B of the Act. We are saying so keeping in mind the following : (1) The manner in which the Order in Original came to be passed by the respondent no.2. (2) Prima facie, it appears that no opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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