2023 (5) TMI 777 - AT - Customs

Opportunity of hearing granted or not - violation of principles of natural justice - HELD THAT - The respondent/ Commissioner have failed to provide adequate opportunity of hearing to the appellant. No reason have been recorded in the impugned order as to why not a date and time could be fixed after the lunch hours or after 3 p.m. for hearing the Counsel of the appellant, who is usually pre-occupied due to his commitments before the Hon ble Supreme Court/High Courts. Accordingly, in the interest of justice this appeal is allowed by way of remand to the respondent/ Commissioner (original Adjudicating Authority), to hear the appellant denovo and shall fix the hearing at a mutually suitable time preferably at or after 3 p.m.

Summary

Issues:
The issue in this appeal is whether the impugned order has been passed by granting adequate opportunity of hearing to the appellant.

Comprehensive Details:

1. The Tribunal had earlier remanded the matter to the Commissioner for a denovo decision based on the Apex Court's judgment regarding redemption fine imposition even after the release of goods against bond. The Commissioner's order not imposing redemption fine was deemed incorrect, and the matter was sent back for a fresh decision.

2. Following the remand, the Commissioner scheduled multiple dates for personal hearings, but the appellant and their counsel failed to appear on those dates. However, the counsel had provided explanations and requested suitable hearing dates due to prior commitments before the courts. Despite the appellant's efforts, the Commissioner passed an ex-parte order, leading to the appellant's dissatisfaction with the lack of proper hearing opportunities.

3. The appellant's counsel highlighted discrepancies in the Commissioner's observations regarding the missed hearings and provided evidence of their attempts to attend and participate in the proceedings. The Commissioner's failure to consider the counsel's scheduling constraints and provide a reasonable hearing opportunity was seen as a violation of natural justice.

4. Upon reviewing the contentions from both sides and examining the records, the Tribunal found that the Commissioner indeed did not offer adequate hearing opportunities to the appellant. The lack of flexibility in fixing hearing times, considering the counsel's prior commitments, was noted as a flaw in the impugned order. As a result, the appeal was allowed by way of remand to ensure a fair hearing process for the appellant.

5. The Tribunal directed the Commissioner to hear the appellant denovo and schedule the hearing at a mutually convenient time, preferably after 3 p.m., taking into account the counsel's professional engagements. The appellant was instructed to appear within 60 days, and the Commissioner was mandated to provide sufficient personal hearing opportunities. The appeal was allowed by way of remand to rectify the procedural shortcomings and uphold principles of natural justice.