NAVYUG PROCESSORS (P) LTD., SHRI Vs. CCE

JUDGEMENT

(1.) These are 5 appeals against common Order -in -Original No. 6/Commr./2002 dated 28.2.2002 passed by the Commissioner of Central Excise, Ahmedabad.

(2.) Shri P.C. Jain, learned Advocate, submitted that a show cause notice dated 14.8.2001 was issued to the Appellants after conducting search of the factory premises and investigation, that the Appellant company had immediately filed a reply dated 30.8.2001 fro the show cause notice; that the impugned order has been passed by the Commissioner in gross violation of principle of natural justice that this is apparent from Para 21 of the impugned Order itself; that it is mentioned in the said para that personal hearing was fixed on 15.1.2002 which was adjourned to 4.2.2002, which again was adjourned to 11.2.2002; that the personal hearing was attended by Shri Dhaval Shah, learned Advocate, on behalf of the appellants wherein he waived the cross objection of all the persons as also any further hearing in the matter and agreed to submit final submissions by 20.2.2002; that the Commissioner had, further mentioned in the said para that no further submissions, were received in spite of them being reminded orally twice and under letter dated 26.2.2002. The learned Advocate mentioned that the letter dated 26.2.2002 was received by the Appellants only on 11.3.2002 which was personally handed over. He referred to page 228 of the paper book which contains acknowledgement of the letter dated 26,2.2002 on 11.3.2002. The learned Advocate then contended that without waiting for the reply of the Appellants the Commissioner passed the order on 28.2.2002 and the impugned order was issued on 11.3.2002; that when the Commissioner himself has treated the letter dated 26.2.2002 as a reminder to the appellants themselves for submitting their final submissions, he should not have adjudicated the matter within 2 days of issuing the letter which was received by them only on 11.3.2002; that immediately after receipt of the said letter they submitted their final reply on 13.3.2002. He also mentioned that as voluminous record was involved in the matter they had to scrutinize the same and other documents for preparing their final repty; that in the meanwhile communal riots erupted in Ahmedabad and other parts of Gujarat State on account of incidence at Godhra Railway station; that as such there was no wilful delay or negligence on their party in not filing the reply before 13.3.2002, and, therefore, passing the impugned order without considering their final reply is in violation of principle of natural justice, He relied upon the decision in the case of Modern Leather Cloth Co. v. CCE, 2989 (43) ELT 155 (Tri). In the said decision also the Appellants were to make further submissions after scrutiny of documents, etc. The Adjudicating Authority decided the matter observing that the Appellants had not even intimated whether they had taken up the inspection of records and it appeared that they were not interested any more in defending the case. The Tribunal allowed the appeal by way of remand after observing that "the Adjudicating Authority not withstanding the lapse on the part of the Appellants to scrutinize the papers, etc. should have put the Appellants on notice as to whether they wish to be heard further, more so when on the previous hearing on 6.7.87, it was decided to hear them further. The Adjudicating Authority was in error in presuming that the Appellants were not interested in any further hearing without ascertaining the position from the Appellants in this regard.. the order has been passed without complying with the requirement of hearing as by the principles of natural justice". Reliance has also been placed on the decision in the case of Intech v. CCE, Chennai, 2003 (152) ELT 311 (Tri) where the Tribunal had set aside the order for violation of principle of natural justice as the Commissioner had not given any notice to the Appellants before passing the order as they could not appear on both the dates of personal hearing.

(3.) Countering the submissions Shri D.N. Chaudhary, learned SDR, submitted that principle of natural justice have been followed by the Adjudicating Authority as personal hearing fixed twice was adjourned on the request of the Appellants; that finally the personal hearing took place on the 3rd date when the Appellants were represented by the Advocate who had agreed to submit final submissions by 20.2.2002; that there was lapse on the part of the Appellants in not submitting their final submissions by the date agreed upon at the time of personal hearing; that it was not necessary for the department to wait for the final submissions from the Appellants or even to remind for submitting final submissions. He emphasized that the principle of natural justice should not be extended to such extent that this amounts to miscarriage of justice. He finally mentioned that the show cause notice was issued in August 2000 and sufficient time was available with the Appellants to scrutinize the voluminous record and make their final submissions.