INTERSCAPE Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this writ petition, the petitioners seek to challenge the order of Commissioner, Central Excise, Mumbai-I dated 26th September 1997 being Order in Original No.8 of 1997 on the ground inter-alia that it was passed without giving adequate opportunity to the petitioners to produce the relevant records and documents, which could have satisfied the Commissioner about the merits of the case of the petitioners. Case of the petitioners is that on the date of hearing, the petitioners could not remain present due to unavoidable circumstances and in such a situation the impugned order came to be passed without considering the documents or material that the petitioners wanted to produce before the Commissioner. The petitioners prays that impugned order may be set aside and the matter be remanded to Commissioner to decide the same afresh after hearing the petitioners.

(2.) WE have heard Mr. Shah, learned counsel for the petitioners and Mr. Sethna, learned counsel for the respondents Mr. Sethna submits that the order of the Commissioner impugned in the present writ petition is appealable under section 35(b) of the Central Excise Act, 1944 and if the petitioner is aggrieved, according to this section, appropriate remedy available to the petitioners against the impugned order is to file appeal before the Customs Excise & Gold (Control) Appellate Tribunal (CEGAT). The learned counsel for the petitioners submits that he has no objection in going before the CEGAT against the impugned order. He, however, apprehends that the hearing of identical notices against the petitioners in respect of similar other transactions which are fixed for hearing on 18th of this month may take place in the meantime, and if the case is heard by any officer subordinate to the Commissioner, he may not be inclined to take a view different from what has been taken by the Commissioner in the impugned order in the identical circumstances even if he is satisfied otherwise. The other apprehension of the learned counsel for the petitioners is that in view of the impugned order, the authority concerned may not like to take different view even if the petitioners can satisfy them by producing material/evidence and may pass the orders in the same terms as in the impugned order.

(3.) SO far as impugned order is concerned, petitioners are at liberty to file appeal before CEGAT as provided under section 35(b) of the Central Excise Act and to move an application for dispensing with/reduction of the condition of pre-deposit. If such an appeal is filed, the same shall be considered by CEGAT on its merits. Needless to say that it is open for the petitioner to raise all contentions including the contention regarding violation of principles of natural justice before the CEGAT.