ABHIRUP EXPORTS PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioner has sought to challenge inter alia an order dated 9 October, 2007 of the Development Commissioner, SEEPZ SEZ imposing a recovery of Rs. 88.33 lakhs towards the duty drawback and a fiscal penalty of Rs. 5 lakhs on the Director. The order of the adjudicating authority has been confirmed in appeal by the Joint Secretary to the Government of India in the Ministry of Commerce and Industry being the Appellate Authority on 8 September, 2010. The principal challenge is that though the notice to show cause dated 10 August, 2004 was issued on the basis of the report submitted by the Office of the Commissioner of Central Excise and Customs, Nagpur, that report was not supplied in spite of a demand and hence, there has been a breach of the principles of natural justice.

(2.) The notice to show cause expressly refers to the report of the Commissionerate of Central Excise and Customs, Nagpur in the following terms;

(3.) In our view, the manner in which both the authorities have dealt with the case is thoroughly unsatisfactory, there being an apparent violation of the principles of natural justice. The charges against the Petitioner are serious involving a fraudulent claim of duty drawback, but that does not obviate the need to comply with either the principles of natural justice or for that matter, the need for the Appellate Authority to write a proper reasoned order. A failure to comply with the principles of natural justice results in a situation where, in a challenge under Article 226 of the Constitution, this Court is constrained to set aside the order and to remand the proceedings back to the adjudicating authority. The fact that the report has been disclosed in the affidavit in reply would indicate that there was no reason or justification not to do so at the earlier stage. In these circumstances, and without this Court expressing any view on the merits of the allegations against the Petitioner, we set aside the impugned order of the Appellate Authority dated 7 March, 2011 (Exh.M) which in turn confirmed the order of the adjudicating authority dated 9 October, 2007 (Exh.G). In consequence, we restore the proceedings back to the Development Commissioner, SEEPZ for passing a fresh order in accordance with law. We direct that the Petitioner shall appear before the adjudicating authority at 12 noon on 28 January, 2013 on which date, directions will be given in regard to the date of hearing. Since the report which is sought to be relied upon in the show cause notice has already been annexed to the affidavit in reply, no further disclosure on that count is necessitated. The Petition is accordingly disposed of. There shall be no order as to costs.