2015 (11) TMI 1463 - HC - Customs

Ex-parte decision - opportunity of hearing was not provided - gross violation of principles of natural justice - Finalization of provisional assessment - availment of Customs Duty Exemption on the basis of forged project implementing authority certificates - Held that - Since the petitioner disputes the very service of notice with regard to hearing of the case as well as the failure on the part of the authority to afford an opportunity of personal hearing and the learned standing counsel appearing for the respondent, on the other hand pointed out the absence of the petitioner and his counsel on the date of hearing, this court is inclined to direct the petitioner to file an appeal under Section 129(A)(1) of the Customs Act, 1962 before the authority namely, Special Bench of the Customs, Excise and Service Tax Appellate Tribunal at New Delhi, within a period of three weeks from the date of receipt of a copy of this order. - Petition disposed of.

Summary

Issues:
Challenging finalization of provisional assessment based on alleged forged certificates for Customs Duty Exemption, violation of principles of natural justice in passing impugned order without proper hearing and directions of Division Bench.

Analysis:
The petitioner, a registered company exempted from customs duty, imported goods based on alleged forged certificates for customs duty exemption. A show cause notice was issued challenging this, leading to a writ petition dismissed on 02.08.2005, with a subsequent writ appeal disposed of by the Division Bench on 13.02.2006 with specific directions. Despite an opportunity for a personal hearing on 20.03.2006 and adjournment to 12.04.2006, the impugned order was passed on 21.04.2006 without proper hearing, violating principles of natural justice as per the petitioner's grievance.

The Division Bench's order mandated affording due opportunity of personal hearing within a specified time frame, which was partially adhered to with a hearing on 20.03.2006 and adjournment to 12.04.2006. However, the petitioner claims no intimation or hearing opportunity for the latter date, while the respondent asserts notice issuance and lack of appearance by the petitioner or counsel on 12.04.2006, leading to the impugned order on 21.04.2006. The dispute arises over the service of notice and the failure to provide a proper hearing, highlighting a procedural flaw.

Considering the conflicting claims regarding notice service and hearing opportunity, the court directs the petitioner to file an appeal under Section 129(A)(1) of the Customs Act, 1962 before the Special Bench of the Customs, Excise and Service Tax Appellate Tribunal in New Delhi within three weeks. The petitioner is granted the liberty to raise all grounds, including the violation of natural justice principles. The authority is instructed to accept the appeal without limitation constraints and dispose of it within four weeks after filing, ensuring a fair opportunity for the petitioner. The writ petition is thus disposed of with these directions, without imposing any costs, and the connected miscellaneous petition is closed.