SURYA FINE CHEMICALS Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) BOTH the stay petitions as well as appeals are involving a common question of law and hence they are taken up together for disposal as per law.

(2.) COUNSEL Shri R. Raghavan has submitted that they had sought for adjournment for four weeks as there was a marriage of the sister -in -law of the partner of the firm and he also wanted to be away thereafter on a business tour and had, therefore, requested for postponement of personal hearing by four weeks. The Company Secretary of M/s. Bush Boake had also intimated that he was to participate in an insurance participation on that date and sought for adjournment by four weeks. The personal hearing was fixed on 7 -3 -2002 and also on 21 -3 -2002. There was no communication from either of them. Ld. Commissioner has admitted that letters were received from both of them that is M/s. Surya Fine Chemicals and M/s. Bush Boake. Ld. Commissioner was not inclined to grant any adjournment to both the noticees because he had given two opportunities effectively and they failed to avail these two opportunities. He also held that provisions of Section 11A which mandates adjudication of these types of notices within a period of one year are also important here and he has noted that the notices were issued as early as January, 2001 and observed that any further delay in adjudication would negate the purposes of Section 11A. Counsel submitted that there was no notice from the ld. Commissioner that he would pass the order on 21 -3 -2002 in case if they do not appear before him as he could not wait for more than the period stipulated in the provisions of Section 11A. In the absence of such notice the order of the ld. Commissioner is bad in law and is violative of principles of natural justice. In this connection counsel relied on the judgment rendered in the case of Union of India and Anr. v. Arebee and Company as reported in 1987 (31) E.L.T. 636 passed by the Hon'ble High Court of Judicature at Bombay in which it has been held that rejection of request for short adjournment would be unjust and inequitable if intimation of rejection which is necessary before passing ex parte order is not given to the petitioners. He also invited our attention to the judgment rendered by the Tribunal Special Bench, New Delhi in the matter of Golden Cable Co. v. Collector, New Delhi as reported in 1994 (71) E.L.T. 955 wherein also it has been held that the principles of natural justice are violated in case where the adjournment is not given if sought on general grounds. He also brought to our notice another judgment of the Tribunal Special Bench, New Delhi in the matter of City Drinks Ltd. v. Collector as reported in 1990 (48) E.L.T. 566 wherein also it was held that principles of natural justice are violated if ex parte order confirming the demands and imposing penalty without giving opportunity for personal hearing and without submitting technical evidence, etc., if any. In view of the above submissions counsel submits that the case may be referred back to the Commissioner of Central Excise, Chennai -III Commissionerate for de novo consideration. He also submits that all the submissions which were made already in the matter and which they may like to make may be taken into consideration by the ld. Commissioner in the de novo proceedings.

(3.) LD . SDR Smt. Bhagya Devi submits that two effective opportunities had been given to the appellant and they had not responded to the call for personal hearing and the Commissioner was right in adjudicating these cases without granting any further opportunity to the appellant. Moreover Section 11A (2A)(a) of the Central Excise Act, 1944 inserted (with effect from 11 -5 -2001) vide Section 123 of the Finance Act, 2001 has a mandate to determine the amount of such duty within a period of one year after the issue of show cause notice under Section 11A (1) of the Act ibid.