2021 (7) TMI 862 - HC - Central Excise

Principles of Natural Justice - petitioner did not informed about the summons to their counsel regarding the personal hearing - the impugned order was passed without providing personal hearing to the learned counsel who represented petitioner - HELD THAT - This Court is of the considered opinion that in all circumstances, the parties aggrieved are bound to prefer an appeal before the appellate authority. However, in certain circumstances, the Courts are bound to consider whether the denial of opportunity caused certain prejudice to the interest of the person aggrieved. In the present case, admittedly, the summons were issued to the petitioner. However, the learned counsel for the petitioner entered appearance in the proceedings before the respondent on 04.03.2014 itself. Thus, there is a possibility that the petitioner would not have informed about the summons to their counsel regarding the personal hearing. Under those circumstances, the counsel was not aware of the date of personal hearing and the same resulted in passing of the final order without hearing the learned counsel who entered appearance on behalf of the writ petitioner. This Court is of an opinion that the petitioner has to be provided with an opportunity of personal hearing for the purpose of submitting the judgments, documents and the grounds raised to defend their case - the matter is remanded back to the respondent for fresh consideration after providing an opportunity to the learned counsel who entered appearance on behalf of the petitioner and thereafter pass final orders on merits and in accordance with law - Petition allowed by way of remand.

Summary

Issues:
Challenge to Order in Original passed without providing personal hearing to the petitioner's counsel.

Analysis:
The petitioner challenged an Order in Original passed without granting a personal hearing to their counsel, raising the issue that the summons were sent directly to the petitioner instead of the counsel who had entered appearance. The respondent argued that as per Section 37C of the Central Excise Act, summons can be issued to the person intended or their authorized agent; hence, the petitioner was at fault for not informing their counsel about the hearing dates. The respondent contended that personal hearings were scheduled three times, but the petitioner did not attend, leading to the assessment order being passed.

The petitioner's counsel argued that they would have presented the case effectively if given the opportunity, citing previous judgments. The Court acknowledged that while parties are generally required to appeal, exceptions are made when denial of opportunity causes prejudice. The Court noted discrepancies in the communication of hearing dates to the counsel and petitioner, leading to the final order being issued without the counsel's representation.

In light of the petitioner's submissions, the Court decided to quash the impugned order and remand the matter back to the respondent for fresh consideration. The Court directed the respondent to provide a personal hearing opportunity to the petitioner's counsel, emphasizing the need for a prompt resolution within four months. The petitioner was instructed to cooperate for the swift conclusion of the proceedings without unnecessary delays. The writ petition was disposed of without costs, and connected miscellaneous petitions were closed.