1989 (6) TMI 68 - HC - Central Excise

Summary

Issues Involved:
1. Ex parte order and opportunity for written representation.
2. Compliance with Rule 233-A of the Central Excise Rules, 1944.
3. Application of mind in issuing the show cause notice and final order.
4. Consideration of relevant materials in adjudication.
5. Compliance with Rule 173Q of the Central Excise Rules, 1944.
6. Jurisdiction of the Appellate Tribunal.
7. Violation of the principle "nemo judex in causa sua."

Issue-wise Detailed Analysis:

1. Ex parte Order and Opportunity for Written Representation:
The petitioner argued that the ex parte order under appeal should be set aside as the failure to submit the written representation was not due to any fault on the part of the appellant but was the result of the fault committed by his counsel. The court noted that the petitioner had engaged an advocate who had requested documents from the respondent to prepare a reply to the show cause notice. Despite repeated requests, the documents were not furnished, and the petitioner was not given a reasonable opportunity to file a written representation. The court emphasized the principle that an innocent litigant should not suffer due to the fault of their advocate, referencing the Supreme Court's decision in Rafiq v. Munshilal.

2. Compliance with Rule 233-A of the Central Excise Rules, 1944:
The petitioner contended that the order under appeal was bad for non-compliance with Rule 233-A, which mandates that a person proceeded against must be afforded a reasonable opportunity of being heard. The court agreed that the petitioner was denied a fair hearing due to the non-receipt of documents and the lack of response from the respondent, thereby violating the principles of natural justice.

3. Application of Mind in Issuing the Show Cause Notice and Final Order:
The petitioner argued that the order under appeal was liable to be set aside for non-application of mind by the respondent before issuing the show cause notice and the final order. The court did not specifically address this issue in detail but implied that the procedural defects and lack of a fair hearing contributed to the non-application of mind.

4. Consideration of Relevant Materials in Adjudication:
The petitioner claimed that the order under appeal was liable to be set aside for non-consideration of relevant materials while adjudicating the case. The court noted that the petitioner was not provided with the documents relied upon by the respondent, which hindered his ability to present a proper defense. This lack of consideration of relevant materials further supported the petitioner's claim.

5. Compliance with Rule 173Q of the Central Excise Rules, 1944:
The petitioner questioned whether the respondent complied with Rule 173Q in ordering the confiscation of land, building, plant, machinery, etc. The court found that the procedural lapses, including the denial of a reasonable opportunity to be heard, indicated non-compliance with Rule 173Q. The confiscation orders were thus called into question.

6. Jurisdiction of the Appellate Tribunal:
The petitioner argued that the Appellate Tribunal acted without jurisdiction in sustaining part of the order under appeal directed against M/s. Vitco Rubber Industries while setting aside the part directed against the appellant. The court did not delve deeply into this issue but focused on the procedural defects and the need for a fair hearing.

7. Violation of the Principle "Nemo Judex in Causa Sua":
The petitioner contended that the order under appeal was incompetent due to the violation of the principle "nemo judex in causa sua," as the adjudicating authority was responsible for sanctioning advance cash rewards to officers involved in the case. The court acknowledged this contention, noting that the adjudicating authority's involvement in rewarding officers could lead to a prejudgment of the issues, thus violating the principle of impartiality.

Conclusion:
The court concluded that the questions of law regarding the ex parte order, compliance with Rule 233-A, compliance with Rule 173Q, and the violation of the principle "nemo judex in causa sua" were substantial and required further scrutiny. The court directed the second respondent to state the case and refer these questions to the High Court for decision within two months. The original petition was disposed of accordingly.