2019 (6) TMI 951 - HC - Central Excise

Violation of principles of natural justice - opportunity of personal hearing - the complaint of the petitioner is not that there was no compliance whatsoever with the principles of natural justice or fair play but rather, the complaint relates to insufficient compliance with such principles - HELD THAT - Since this is not a case of total noncompliance with principles of natural justice, the issue of prejudice also assumes significance. It is not sufficient for the petitioner to merely allege failure of natural justice, but further the petitioner, has to make out a case of consequent prejudice, particularly in a case where the complaint really is of inadequate opportunity and not of no opportunity whatsoever. The case of prejudice, if any, as also response to the same will essentially involve adjudication into factual aspects which exercise can be effectively undertaken in the course of appeal rather than in these proceedings. The petitioner, in the facts and circumstances of the present case, has therefore not made out a case warranting the exercise of extraordinary jurisdiction under Article 226/227 of the Constitution of India, bypassing the alternate and efficacious remedy by way of an appeal before the Appellate Authority. This is not a case of no opportunity but at the highest the complaint relates to 'no adequate opportunity'. The petitioner will therefore, have to make out a case, not only of failure of natural justice but also a case of consequent prejudice. All this, will require examination and evaluation of facts, which can be conveniently gone into the appeal rather than in the exercise of powers of judicial review - we are satisfied that no case has been made out to entertain the present petition bypassing the alternate and efficacious remedy of appeal clearly available to the petitioner. Petition dismissed.

Summary

Issues involved:
Challenge to order by Commissioner of CGST and Central Excise, violation of principles of natural justice, adequacy of compliance with principles of natural justice, availability of alternate remedy of appeal, bypassing alternate remedy in extraordinary jurisdiction under Article 226/227 of the Constitution of India.

Detailed Analysis:
1. Challenge to Order by Commissioner: The petition challenges the order dated 20th February 2018 and subsequent corrigenda issued by the Commissioner of CGST and Central Excise, Nashik, in response to a Show Cause Notice dated 1st August 2017. The petitioner contests the orders on the grounds of alleged violation of principles of natural justice.

2. Violation of Principles of Natural Justice: The petitioner argues that the impugned orders were based on statements of its employees recorded under Section 14 of the Central Excise Act, 1944, without granting an opportunity for cross-examination. The petitioner asserts that denial of cross-examination without cogent reasons amounts to a breach of natural justice, warranting the quashing of the orders.

3. Adequacy of Compliance with Principles of Natural Justice: The Court observes that while the petitioner was provided with a Show Cause Notice, materials for defense, and a hearing opportunity, the issue raised pertains to the adequacy rather than total noncompliance with natural justice principles. The Court notes that the impugned orders were not issued without notice or hearing, indicating insufficient compliance rather than a complete absence of procedural fairness.

4. Availability of Alternate Remedy of Appeal: The respondent argues that the petitioner had an alternate and efficacious remedy of appeal to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) under relevant statutory provisions. The respondent contends that the Court should not intervene under Article 226/227 of the Constitution of India due to the availability of the appellate route.

5. Bypassing Alternate Remedy in Extraordinary Jurisdiction: The Court emphasizes that the petitioner failed to establish a case justifying the exercise of extraordinary jurisdiction under Article 226/227, bypassing the appeal mechanism. The Court highlights the importance of demonstrating both failure of natural justice and resulting prejudice, which necessitates factual evaluation best suited for appeal proceedings rather than judicial review.

6. Judicial Precedents and Distinctions: The Court references various legal precedents cited by both parties to underscore the necessity of a strong case to bypass the alternate remedy of appeal. It distinguishes cases where the absence of cross-examination or procedural irregularities warranted immediate intervention from instances where the appellate process should be pursued for a comprehensive review of facts and claims.

7. Dismissal of Petition with Liberty to Appeal: Ultimately, the Court dismisses the petition while granting the petitioner the liberty to avail the remedy of appeal against the impugned orders within a specified timeframe. The Court encourages the Appellate Authority to consider the appeal on its merits, given the circumstances of the case and the petitioner's pursuit of the writ petition.

In conclusion, the judgment upholds the importance of adhering to principles of natural justice, emphasizes the availability of statutory remedies through appeal mechanisms, and underscores the need for a compelling case to justify bypassing established appellate procedures in seeking judicial redress.