1987 (7) TMI 308 - AT - Central Excise

Issues Involved:
1. Legality of ex parte adjudication.
2. Compliance with Rule 233A of the Central Excise Rules, 1944.
3. Validity of the show cause notice and impugned order.
4. Allegation of pecuniary bias.
5. Quantum of fine and penalty.

Detailed Analysis:

1. Legality of Ex Parte Adjudication:
The appellant argued that the ex parte order should be set aside as he did not respond to the show cause notice due to his advocate's inaction. The Tribunal noted that the show cause notice was received by the appellant, and a reminder was also sent, which was ignored. The Tribunal held that the inaction on the part of the appellant indicated a waiver of the right to reply and personal hearing. The Tribunal referenced the Supreme Court rulings in 'Shahoodji Haque v. Registrar, Cooperative Societies, Bihar' and 'Union of India v. T.R. Varma', concluding that there was no violation of natural justice principles.

2. Compliance with Rule 233A:
The appellant contended that Rule 233A required a separate opportunity for a personal hearing, independent of the opportunity to submit a written representation. The Tribunal found this argument without substance, stating that the show cause notice clearly specified the statutory requirements, including the opportunity for a personal hearing. The Tribunal emphasized that the appellant's failure to respond implied a waiver of these rights. The Tribunal also noted that the Kerala High Court had dismissed a similar plea by the appellant in O.P. No. 5638/86 U.

3. Validity of the Show Cause Notice and Impugned Order:
The appellant claimed that the show cause notice and the impugned order were defective due to non-application of mind, as they treated the proprietary concern and the proprietor inconsistently. The Tribunal dismissed this argument, stating that the appellant, as the sole proprietor, had received notices in both capacities. The Tribunal clarified that in law, a proprietary concern is not distinct from its proprietor, and the notices were appropriately addressed.

4. Allegation of Pecuniary Bias:
The appellant alleged pecuniary bias, arguing that the adjudicating authority was influenced by the advance reward sanctioned to the officers involved in the investigation. The Tribunal rejected this claim, stating that the reward was an administrative act and did not affect the impartiality of the adjudicating authority. The Tribunal emphasized that there was no evidence of personal bias against the appellant.

5. Quantum of Fine and Penalty:
The appellant argued that the penalties were excessive and that special reasons for the confiscation of plant and machinery were not provided. The Tribunal found that the adjudicating authority had given proper reasoning for the confiscation and that the quantum of duty was correctly calculated. However, the Tribunal exercised its discretion to reduce the penalty on M/s. Vitco Rubber Industries from Rs. 5 lakhs to Rs. 2 lakhs and the fine for land, plant, and machinery from Rs. 50,000 to Rs. 25,000. The fine of Rs. 5,000 for tread rubber was confirmed. The separate penalty of Rs. 2,000 on the appellant, Shri V.K. Thampi, was set aside, considering the penal liability already imposed on the proprietary concern.

Conclusion:
Except for the modifications in the quantum of penalties and fines, the appeal was otherwise dismissed. The Tribunal's decision emphasized adherence to procedural requirements, the waiver of rights through inaction, and the absence of bias in the adjudicative process.

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