2019 (9) TMI 280 - HC - Central Excise

Principles of Natural Justice - petitioner was not given an opportunity to cross examine the witnesses - case of Revenue is that, Since the order was passed after 15 months from the show cause notice and the entire period of 15 months was only at the instance of the petitioner, it can only be said that the petitioner was given sufficient opportunity and therefore it will not amount to violation of the principles of natural justice. HELD THAT - No reply statement has been filed opposing such a statement made in the counter affidavit. As such it is seen that the petitioner was granted opportunity at least on four occasions which have not been availed by the petitioner. It is also seen that the petitioner has not produced any list of witnesses whom they intend to cross examine. In these circumstances, it can be said that sufficient opportunities were extended to the petitioner, which was not availed by them, within a reasonable time - Since the respondents had granted sufficient opportunities to the petitioner, it is held that there is no violation of principles of natural justice and hence setting aside the impugned order will not be proper. Maintainability of petition - alternative remedy of appeal - HELD THAT - Section 35(B) of the Central Excise Act, 1944 provides for an appeal against the impugned order to the CESTAT within a period of three months from the date of the impugned order - In the instant case, the impugned order was passed on 29.06.2004 and the writ petition came to be filed on 20.08.2004 - Since the petitioner has approached this Court within the appeal time prescribed to approach the CESTAT, this Court is of the view that the petitioner can be granted an opportunity to file an appeal within a stipulated time. This writ petition stands closed with liberty to the petitioner to file an appeal before the CESTAT, under Section 35(B) of the Central Excise Act, 1944, within a period of three months from the date of receipt of a copy of this order - petition closed.

Summary

Issues: Violation of principles of natural justice in the order passed by Commissioner, Central Excise, Madurai; Opportunity for cross examination not granted; Delay in adjudication proceedings; Appeal under Section 35(B) of the Central Excise Act, 1944.

Violation of Principles of Natural Justice:
The writ petition challenged the order passed by the Commissioner, Central Excise, Madurai, alleging a violation of natural justice principles due to the lack of opportunity for cross examination. The petitioner contended that despite requesting permission to cross examine around 50 witnesses, no response was received from the respondent before the impugned order was issued. The respondent, on the other hand, argued that the petitioner had multiple opportunities to present their defense but failed to do so, leading to delays in the adjudication process. The Deputy Commissioner of Central Excise detailed the timeline of events, showing that the petitioner repeatedly requested extensions to file their reply without substantial progress. The court noted that the petitioner was granted sufficient opportunities for defense, and the lack of response on multiple occasions indicated a deliberate delay tactic rather than a denial of natural justice.

Delay in Adjudication Proceedings:
The counter affidavit revealed a series of delays caused by the petitioner in responding to the show cause notice and availing opportunities for personal hearings. Despite extensions granted for filing replies, the petitioner continuously sought further time, citing reasons such as voluminous case records and alleged coercion in obtaining statements. The respondent provided multiple chances for personal hearings, but the petitioner either delayed or did not attend, prolonging the process. The court observed that the petitioner's actions demonstrated a purposeful attempt to drag out the proceedings rather than a genuine effort to engage in the adjudication process promptly.

Appeal under Section 35(B) of the Central Excise Act, 1944:
The judgment highlighted the provision under Section 35(B) of the Central Excise Act, 1944, allowing for an appeal to the CESTAT within three months of the impugned order. As the impugned order was issued on 29.06.2004 and the writ petition was filed on 20.08.2004, falling within the appeal timeframe, the court granted the petitioner the opportunity to file an appeal before the CESTAT within the prescribed period. The judgment emphasized the importance of adhering to statutory appeal provisions and directed the petitioner to avail themselves of the appeal remedy within the stipulated time frame.

Conclusion:
The court concluded that the respondent had provided sufficient opportunities for the petitioner to present their case, and there was no violation of natural justice principles in the order passed by the Commissioner, Central Excise, Madurai. As per the provisions of Section 35(B) of the Central Excise Act, 1944, the petitioner was granted the liberty to file an appeal before the CESTAT within three months from the date of receipt of the order. Additionally, the court addressed the issue of the lost original order and directed that the reconstructed writ petition papers would be acceptable for filing the appeal before the CESTAT. The writ petition was closed with no costs imposed on either party.