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2022 (7) TMI 232 - HC - Service TaxMaintainability of petition - availability of alternative remedy of appeal - opportunity of personal hearing - Violation of principles of natural justice - HELD THAT - There is no dispute to the proposition that when the statute provides for a remedy, ordinarily a writ court would be reluctant to entertain a writ petition. However, there are well recognized exceptions to the above rule of self-imposed limitation. One such well recognized exception is violation of the principles of natural justice. If there is violation of the principles of natural justice, the writ court may still entertain a petition under Article 226 of the Constitution of India notwithstanding availability of alternative remedy. The personal hearing was in connection with the show cause notice issued to the petitioner on 19.12.2016. Three dates of personal hearings were mentioned and it was stated in paragraph 3 that petitioner could appear on any one of the dates mentioned either in person or through counsel. Beyond the three dates mentioned above, no further extension of time would be given. The stand taken by the respondents that mentioning of the third date of hearing i.e., 03.03.2017 is a typographical error does not appeal to us. It is clear as day light that the intention of the respondent No.1 was to provide personal hearing on either of the three dates. If the respondents had provided three dates with the option to the petitioner to avail any one of the dates for personal hearing, then respondents ought to have waited for the last date so mentioned in the notice dated 17.02.2017 which is 03.03.2017. Abrupt passing of the order-in-original on 28.02.2017 without waiting for the petitioner to avail personal hearing on 03.03.2017 and proceeding ex parte on 28.02.2017 has vitiated the impugned order-in-original. Petition allowed.
Issues: Violation of principles of natural justice in passing order-in-original under Section 65 of the Finance Act, 1994.
Analysis: 1. The petitioner sought the quashing of the order-in-original dated 28.02.2017 passed by respondent No.1 under Section 65 of the Finance Act, 1994, citing a violation of principles of natural justice. 2. The order-in-original confirmed demands for various amounts, including education cess, secondary & higher education cess, and cenvat credit allegedly availed irregularly during specific periods. 3. Penalties were imposed for contraventions under Section 78 of the Finance Act, 1994, in addition to the confirmed demands. 4. The petitioner received a show cause notice dated 19.12.2016 before the passing of the order-in-original. 5. The petitioner was informed of personal hearing dates on 23.02.2017, 28.02.2017, and 03.03.2017, with a directive to appear on any one of the dates mentioned. 6. The petitioner contended that passing the order before the scheduled personal hearing on 03.03.2017 violated principles of natural justice, citing Section 33A of the Central Excise Act, 1944 and a Gujarat High Court decision. 7. The respondents argued that the petitioner failed to appear on 28.02.2017, and the mention of 03.03.2017 was a typographical error. They referred to a circular providing for three personal hearings and highlighted the availability of further appeal remedies. 8. The court acknowledged the general reluctance to entertain writ petitions when statutory remedies exist but noted exceptions for violations of natural justice. 9. The court examined the personal hearing notice and found that the abrupt passing of the order-in-original before the scheduled hearing on 03.03.2017 vitiated the process. 10. Consequently, the court set aside the order dated 28.02.2017, allowing the respondents to pass fresh orders with due notice and opportunity of hearing to the petitioner. 11. The writ petition was allowed, with pending miscellaneous applications closed and no order as to costs.
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