2018 (9) TMI 593 - HC - Customs

Exemption from CVD - Serial No.1A(i) of Notification No.4/2006-CE, dated 01.03.2006 - petitioner could not produce the invoices as well as the bill of entries questioned by the authority - the petitioner says that the authority has passed orders without considering all the bill of entries and complete set of invoices. Now, the petitioner has traced those documents. Therefore, non consideration will lead to failure of justice and gross injustice will be done to the parties - Principles of Natural Justice. Held that - The Hon ble Supreme Court, in very many cases, has held that instead of rejecting the matter on the ground of technicalities, it shall be seen that substantial justice is done on merits of the matter. Here is the case, there are materials, which should have been considered by the authority, which are now available before the Court. Consideration of these materials evidences may change the cause of the order. Non consideration will cause grave hardship and irreparable hardship to the petitioner - In the interest of justice, the original authority is directed to consider the available materials and decide afresh. The matter is remitted back to the original authority for fresh consideration on the basis of the material evidences produced by the petitioner - petition allowed by way of remand.

Summary

Issues:
Challenge to Order in Original and Order in Appeal based on lack of consideration of relevant materials and violation of principles of natural justice. Appeal dismissed on the ground of limitation.

Analysis:
1. The petitioner, an importer of Cement, imported goods under specific conditions for availing exemption from Counter Veiling Duty (CVD). However, a show cause notice was issued questioning the concession availed, leading to a demand for differential duty, interest, and penalty. The petitioner submitted a detailed reply but faced an adverse Order-in-Original confirming the demand and imposing a penalty. An appeal was filed, which was dismissed on the ground of limitation specified under Section 128(1) of the Customs Act, 1962. The petitioner challenged both orders before the High Court.

2. The petitioner contested the orders on the grounds of lack of consideration of relevant materials and violation of principles of natural justice. The petitioner argued that the authority failed to consider the complete set of invoices and bill of entries, which were now available. Referring to a relevant notification, the petitioner claimed eligibility for exemption and argued against the demand for differential duty and penalty under the Act.

3. The appellate authority rejected the appeal based on a technical ground of limitation, disregarding the petitioner's submission of relevant documents post the original order. The petitioner contended that failure to consider these materials amounted to a failure of justice and gross injustice.

4. Citing a judgment by the High Court of Gujarat, it was highlighted that under Article 226 of the Constitution, interference is permissible when an order is passed in violation of natural justice, resulting in gross injustice. Applying this principle, the High Court found merit in the petitioner's argument that non-consideration of available materials would lead to injustice.

5. The High Court emphasized the importance of ensuring substantial justice over technicalities, especially when materials that should have been considered are now available before the Court. Referring to previous judgments, the Court directed the original authority to reconsider the matter based on the material evidence produced by the petitioner.

6. Consequently, the orders confirming the demand and penalty were set aside, and the matter was remitted back to the original authority for fresh consideration based on the newly available material evidence. The writ petition was disposed of with these observations, emphasizing the interest of justice and the importance of considering all relevant materials in adjudication.