TMI Blog1989 (6) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... f making a representation in writing? 3. Whether, in the facts and circumstances of the case, is not the order under appeal liable to be set aside for non-application of mind on the part of the respondent before issuing the show cause notice and the final order? 4. Whether, in the facts and circumstances of the case, is not the order under appeal liable to be set aside for non consideration of relevant materials while adjudicating the case against the appellant and other? 5. Whether, on a perusal of the order under appeal can it be said that the respondent has complied with the provisions of Rule 173Q of the Central Excise Rules, 1944 inasmuch as the respondent has ordered the confiscation of the land, building, plant, machinery etc. used in the manufacture, storage etc.? 6. Whether, in the facts and circumstances of the case, has not the Appellate Tribunal gone wrong and acted without jurisdiction in sustaining that part of the order under appeal which was directed against M/s. Vitco Rubber Industries, Kizhakkambalam, Alwaye, and setting aside only the other part of the order under appeal which was directed against the appellant? 7. Whether, in the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a request to furnish copies of the relevant documents to him for preparing the reply to the show cause notice. Since the petitioner did not hear anything from his Advocate for a period of about 3 weeks, he made enquiries with his Advocate as to whether the copies of the documents were received by him from the First respondent. He was informed by the Advocate that there was no response from the Department and that he was awaiting the reply from the respondent. While so, on 21-5-1986, the petitioner received another letter dated 13-4-1986 from the 1st respondent directing him to file the reply within 7 days, failing which, it is stated, ex parte orders would be passed. The petitioner's contention is that immediately he went to the residence of the Advocate to inform him about the aforesaid communication and to instruct him to do what was necessary in the matter. At that time the Advocate was not available and therefore the petitioner entrusted the letter with an inmate of the house requesting him to hand over the same to the Advocate. Immediately on his return after a few days the petitioner again went to the house of the Advocate and explained to him as to what had transpired durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant documents which he sent along with the vakalath by post. He did not get any reply from the Department. But when he was at Madras in the 3rd week of May, 1986 his client called on his residence at Kaloor, Cochin and after his return the petitioner again met him when he advised him to wait till the documents were received. Thereafter, the Advocate sent another letter dated 20-6-1986 by registered post to the Collector of Central Excise requesting him to furnish the copies of the documents. But on 1-7-1986 the petitioner came to the Advocate and told him that the final order was passed on 19-6-1986. The Advocate has sworn that there was no laches or omission or negligence on the part of the petitioner in not submitting the reply to show cause notice within the stipulated time and the delay occurred on account of the reasons stated in the affidavit. The Tribunal referred to the affidavit of the Advocate but the same was rejected on the ground that the residence of the Advocate who was originally engaged by the petitioner was only 3 to 4 Kms. away from the office of the Collector of Central Excise and if no reply was received from the office of the adjudicating authority the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esulted in civil consequences. The petitioner has entrusted the matter to an Advocate and at all times he approached the lawyer and he acted upon bona fide according to advise of his lawyer. His Advocate also filed an affidavit before the Tribunal. It has been held in R. v. Diggines (1985) 1 A.E.R. 1073 that :- "Where an applicant was denied a hearing by a Tribunal through no fault of the applicant or the Tribunal but because of the fault of the applicant's advisors, there was nevertheless a breach of the audi alteram partem rule which entitled the applicant to judicial review of the Tribunal's decision if it was adverse to the applicant". This decision has been followed in a recent decision in R. v. Secretary of State Ex. p.A1 Mehdawi (1989) 1 A.I.R. 777. It was held : "Since the respondent had been deprived of a hearing by the adjudicator solely because of his solicitor's negligence the decision-making process was fundamentally flawed by a breach of the rules of natural justice even though neither the respondent himself nor the adjudicator were at fault." Even though the matter arose under the Code of Civil Procedure in the decision reported in Rafiq v. Munshilal, 1981 S. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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