TMI Blog1996 (2) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... bove the opportunity of making a representation in writing? Whether, on a perusal of the order under appeal, can it be3. said that the respondent has complied with the provisions of Rule 173Q of the Central Excise Rules, 1944 in as much as the respondent has ordered, the confiscation of the land, building, plant, machinery etc. used in the manufacture, storage etc.? Whether, in the facts and circumstances of the case, is not4. the order under appeal incompetent and liable to be set aside for violation of the maxim nemo judex in re sua in as much as the adjudicating authority (respondent) was responsible for sanction order No. 3/86-87 dated 4-4-1986 distributing advance cash rewards to the various officers who participated in the detection/investigation of the case relating to M/s. Vitco Rubber Industries, Kizhakkambalam and thereby prejudging the issues arising for adjudication?" 2.The answer to these questions requires to know the principles of natural justice in the context. The principles are founded on the bedrock of fairness and reasonableness. "Justice" implies consideration of the pros and cons of the problem under consideration. It necessitates what is known as "heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong in conduct is largely learnt and imbibed during upbringing, whether in a family or society or trade or even profession. This is the ethical essence. The personality of Advocate, both for the dignity of the profession and for better quality of service to the public is built up on certain standards. In the words of Lord Macmillan of the Privy Council, no other profession touches human life at so many points. The guardianship of two precious things in life - justice and liberty - vests in the legal profession and this makes the profession honourable with roots in its long and established traditions. The canons of conduct are traditionally understood and well-known. The court is also the firm supporter of the independence of the Bar and in the process treats an Advocate not as a subordinate officer of the court, but on a much higher level than that, and in a sense it is largely through the labours of counsel that the court is enabled to despatch the business of the court or to despatch its business. It is a relationship of best friendship in the administration of justice, with a spirit that let the system of law prevail though the heavens fall. 7.The relationship of an Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. The concept of fair play in action which is the basis of natural justice must depend on the peculiar lis between the parties. Rules and practices are constantly developing to ensure fairness in the making of decisions which affect people in their daily life and livelihood. It is not proper that an innocent litigant, after doing everything in his power to effectively participate in his proceeding by entrusting his case to the advocate, should be made to suffer for the inaction, deliberate omission or misdemeanour of his counsel. For whatever reason the advocate might have absented himself from the court, the innocent litigant could not be allowed to suffer injustice for the fault of his advocate. 13.Even the standard treatise on natural justice (Natural Justice - Principles and Practical Application by Geoffrey A Flick - Butterworths 1979) emphasises the importance of the role of the lawyer in Chapter VII thereof under the same caption to state that this role has to be as a representative and such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrepancy was detected as alleged by the petitioner; but registers and files were seized. His residence was raided and certain records were seized therefrom. The petitioner was arrested and detained. His statement was recorded. All these are the basis of the show cause notice (Annexure A to the petition). 18.A bare and cursory perusal of the contents of the show cause notice would show that the Excise Authorities collected voluminous material in the nature of statements and seizure of documents not only from the present petitioner, but also from other sources. Although for the purpose of this proceeding it would really not be necessary to go into the minute details of the contents of the show cause notice, it would be enough to state that the show cause notice itself runs into 35 pages and a further perusal to the list of records in support thereof would reveal in the same way that reliance is placed on 45 items in support of the contents of the show cause notice. Although with regard to the initial surprise visit it is averred that the tread rubber comes to Rs.10,000/- and relates to consequential avoidance of duty of Rs. 3675/- approximately, probably on the basis of further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Authority in the matter of waiving the deposit as a pre-condition for filing an appeal. 23.It is with this established situation as regards the predicament of the petitioner at the hands of his legal adviser, under the earlier orders of this court (supra), the proceeding reached the Appellate Authority. 24.It must be understood that the Appellate Tribunal was concerned with the ex parte order (Annexure B) based on the show cause notice (Annexure A) on the basis (as stated in paragraph 39) of the ex parte order) that the show cause notice was received on 31-1-1986 as per the signed acknowledgment and no reply was received in regard thereto with a further reiteration that chance was given on May 13, 1986 by a registered letter which was received by all parties on 20/21 May, 1986 clearly mentioning that in the absence of a reply within seven days the case would be decided ex parte on available records, strengthening the authority to proceed ex parte on the basis of the above referred material. 25.The relevant aspect in regard to the authority passing the ex parte order and reasons available in paragraph 39 thereof is taken up for consideration in paragraph 7 of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 a reminder was also sent to the appellant and was received by him which was also shown to the appellant's counsel. The Appellate Tribunal has observed that "even in such a situation neither the appellant nor his counsel would react and the advocate merely "advised him to wait till the documents were received"". It is in these circumstances the Appellate Tribunal reached factual conclusion that the adjudicating authority afforded enough opportunity to the appellant, when admittedly the appellant received two earlier communications as referred to above, justifying in the process that the adjudicating authority had no other alternative. 29.It becomes necessary at this stage to refer to the contents of the affidavit. Certain facts requires reference as they are ignored in the process of reasoning. The learned Advocate Sri Rajasekharan Nair, who is unfortunately, we are told, no more, was a practising advocate at Ernakulam and the petitioner had approached him with a copy of the show cause notice received by him for the purpose of defending him in the adjudication proceedings. The said advocate agreed to accept and obtained signature on the vakalathnama as the matter was entrusted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final order was passed on June 19, 1986, received by the petitioner on July 1, 1986. We have seen the record and it is seen that the ex parte adjudication dated June 19, 1986 gets communicated to the petitioner by the communication dated June 30, 1986 (Annexure C). 35.Careful examination and perusal of the material in this connection shows that the learned advocate demanded copies of the documents and was waiting for the copies to prepare a suitable reply in regard thereto. It is true that the copy of the communication dated March 3, 1986 is not on record. What we have before us in an affirmed testimony of the professional as against a bare denial of the Department. Our anxiety and consciousness prompted us to see the original record file to know that this communication dated March 3, 1986 or even the vakalath is not in the record. The question is whether by its absence we should disbelieve the sworn testimony of the learned advocate, who, as we are told as stated hereinbefore, retired from the very same Department and on probabilities must be understood to be conversant with the manner in which the office functions. The learned advocate has also stated on oath that initially he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o shows that he was out of station from 20/21 May, 1986, not for an excursion but for a serious cause of admission of his son. The chronology of events show that the petitioner received the communication dated May 13, 1986 sometime on 20 or 21st which was left by him with one of the members of the family of the learned advocate. The record also shows that the petitioner contacted the learned advocate on his arrival from Madras. The material further shows that the ex parte order dated June 19, 1986 was communicated by the communication dated June 30, 1986 received by the petitioner on July 1, 1986. It would be seen that both the petitioner as well as his advocate could not be said to have known the ex parte order dated June 19, 1986. The submission of the learned counsel in this context that the petitioner must have known of the order which can be inferred from the fact that the communication dated June 20, 1986 reiterating the demand for supply of copies should not be considered by us as a mere coincidence. The material that is available on record is not sufficient even for speculation in the context much less fertile imagination on the basis of the cold print record. An order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the said sworn testimony is by a member of the profession. We can only record a hope in a similar situation that the court should not be required, firstly to expect an affidavit of the advocate and secondly be required to rely upon it as a sole piece of evidence in regard thereto. We have done it in the context of factual peculiarity of being required to waive the testimony as against a bare denial. 39.As observed above, the position with regard to the assumed fault of the counsel cannot justify reach of its consequence at the door steps of the party. The principle is obvious in the sense that the counsel is only in the nature of a representative and cannot be understood as has been understood by the Tribunal as an agent of the party. The Supreme Court in Rafiq's case (supra) has realised "the real position as a declaration of law in the context to pose a question". The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate action, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally, the court concerned cannot be a party to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuation of legal assertion, illu- stratively Fact A, Fact B, Fact C and Fact D may specify the test of relevance, on the consideration of which it is for the court to infer in the process. The law in regard thereto is more than crystallised in the decision of the Supreme Court establishing the situation that where an ultimate finding on an issue is an inference to be drawn from the facts found, on the application of any principle of law, a mixed question of law and fact emerges specifying a consequential situation that an inference from the facts found in such a case, a question of law would emerge and would become open to review by the court. Illustratively it will be seen that valuation of goodwill would be understood to involve a question of law. Even the material relating to the existence of the goodwill is a mixed question of fact and law. This is in contradistinction with a situation where the final determination of the conclusion does not involve the application of any principle of law, it would have to be termed as a pure inference from fact although emerging in the process as an inference from other basic facts. It is established a century over that an inference is always ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the present petitioner is given a fresh opportunity to file his written representation to the show cause notice on the basis that his failure to submit the written representation could not be said to be due to any fault on his part, but a situation which could be wholly attributable to the said advocate. 44.The next question relating to the situation available with regard to Rule 233(A) of the Central Excise Rules, 1944, in our judgment, is not required to be answered in view of answer to question No. 1 whereby we have set aside the impugned ex parte order itself. 45.With regard to the question relating to the compliance of the provisions of Rule 173Q of the Central Excise Rules, 1944, the consequence is similar that the question is not required to be answered in view of our answer to question No. 1. The situation with regard to question No. 4 (original question No. 7) the result would not be different from the earlier questions Nos. 2 and 3. 46.The result of the above discussion is that the questions referred are answered as above, the impugned order dated June 19, 1986, as confirmed by the order dated 27-7-1987 of the Appellate Tribunal gets quashed and set aside and co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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