MITESH CHANDRAKANT KOTHRI Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petition under Article 226 of the Constitution seeks to impugn the legality of an order of adjudication passed by the Additional Commissioner of Customs, CSI Airport, Mumbai on 13th February, 2013. An appeal is available against the order under the provisions of Section 129B of the Customs Act, 1962. However, it has been urged on behalf of the Petitioners that the impugned order was passed in violation of the principles of natural justice and hence, the Petitioners ought not to be relegated to the pursuit of the appellate remedy. In this regard, the attention of the Court has been drawn to the statement contained in paragraph 37 of the impugned order where the Adjudicating Authority notes that the personal hearing was fixed on 14th January, 2013, 21st January, 2013 and 29th January, 2013. According to the Adjudicating Authority since the Petitioners did not appear, the case was taken up for ex parte decision. During the course of the previous hearing on 18th April, 2013, Counsel appearing on behalf of the petitioners produced copies of the letters of the Adjudicating Authority dated 15th January, 2013 and 22nd January, 2013 both of which bear a postal despatch endorsement of 29th January, 2013. These letters according to the petitioners, were received on 30th January, 2013. Hence, it is urged that the despatch of the notices of personal hearing by the Adjudicating Authority took place after the dates specified for the hearing, as a result of which, it was impossible for the petitioners to remain present at the hearing. In view of this submission, Counsel appearing on behalf of the Respondents had, on the previous date of hearing, sought an adjournment to obtain instructions from the adjudicating officer.

(2.) Counsel appearing on behalf of the Petitioners has produced copies of the original notices together with the postal envelopes which bear the endorsements of despatch of the postal authorities. Upon perusal of these notices and after taking instructions, Counsel appearing on behalf of the Respondents states that it is correct that the notices of personal hearing were despatched only on 29th January, 2013 and were received on 30th January, 2013 which is after the date fixed for personal hearing. However, it has been urged on behalf of the Revenue that the Adjudicating Authority has duly taken into account all aspects of the case.

(3.) From the record before the Court it is now not in dispute that the impugned order was passed in violation of the principles of natural justice. This is borne out by the fact that the notices intimating the Petitioners of the date of personal hearing were despatched on 29th January, 2013 and were received thereafter, whereas the date on which the hearing was to take place was 29th January, 2013. The receipt of the notice was after the date fixed for hearing. Since the order has been passed in breach of natural justice, it is not necessary to relegate the Petitioner to the remedy of an appeal particularly when the facts are admitted. The presence of a statutory alternate remedy is no bar to a Petition under Article 226 of the Constitution when as in the present case, an order of the adjudicating authority has admittedly been passed in violation of the principles of natural justice.