1996 (2) TMI 152 - HC - Central Excise

Issues Involved:
1. Whether the ex parte order under appeal should be set aside due to the appellant's failure to submit a written representation being attributed to his counsel's fault.
2. Whether the order under appeal is bad for non-compliance with Rule 233A of the Central Excise Rules, 1944.
3. Whether the respondent complied with the provisions of Rule 173Q of the Central Excise Rules, 1944.
4. Whether the order under appeal is incompetent and liable to be set aside for violation of the maxim "nemo judex in re sua."

Detailed Analysis:

Issue 1: Ex Parte Order and Counsel's Fault
The court examined whether the ex parte order dated June 19, 1986, should be set aside and the appellant given a fresh opportunity to file a written representation. The appellant's failure to submit the representation was attributed to his counsel's fault. The court emphasized the principles of natural justice, fairness, and reasonableness. It was noted that the appellant had entrusted the matter to his advocate, who failed to act promptly. The court held that the consequences of the counsel's inaction should not be borne by the appellant. The court referred to the Supreme Court's decision emphasizing that an innocent litigant should not suffer due to his advocate's fault. The court concluded that the ex parte order should be set aside, granting the appellant a fresh opportunity to file the representation.

Issue 2: Non-Compliance with Rule 233A
The court did not find it necessary to answer this issue separately, as the ex parte order was already set aside based on the first issue. The non-compliance with Rule 233A, which mandates a reasonable opportunity of being heard, was rendered moot by the setting aside of the ex parte order.

Issue 3: Compliance with Rule 173Q
Similarly, the court did not address this issue separately. The provisions of Rule 173Q, which involve the confiscation of land, building, plant, machinery, etc., were not examined independently as the ex parte order was already quashed.

Issue 4: Violation of "Nemo Judex in Re Sua"
The court also did not find it necessary to address this issue independently. The question of the adjudicating authority's potential bias due to involvement in sanctioning rewards was not separately analyzed, given the setting aside of the ex parte order.

Conclusion:
The court quashed the ex parte order dated June 19, 1986, and directed the adjudicating authority to proceed de novo with the show cause notice dated January 29, 1986. The appellant was granted 30 days from receipt of the relevant documents to file a written representation. The court emphasized the importance of fairness and reasonableness, ensuring that the appellant was not penalized for his counsel's fault. The adjudicating authority was instructed to complete the proceedings expeditiously, and the appellant was restrained from dealing with his immovable properties pending the completion of the adjudication.

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