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TMI Blog1987 (7) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufacturers of Welding Electrodes falling under Tariff Item 50. On the basis of search and seizure of a number of documents and the statements recorded, a Show Cause Notice calling upon the appellants to show cause as to why a penalty be not imposed upon them under rule 173Q of Central Excise Rules, 1944 and why duty amounting to Rs. 32,702.11 at the appropriate rate on the electrodes surreptitiously manufactured and removed without payment of Central Excise duty during the year 1972 and 1973 be not demanded under Rule 9(2) of Central Excise Rules, 1944 was issued to the appellants. In reply, while abjuring their guilt they took various pleas in their defence and requested for personal hearing. Consequently, personal hearing was fixed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence as set out in the reply to the show cause notice and mentioned in the impugned order itself it was necessary for the Adjudicating Authority to decide the case only after hearing the appellants. In other words, he submitted that the denial of personal hearing has resulted in the grave injustice to the appellants, inasmuch as, the appellants could not get any opportunity to explain the various intricacies of the defence pleas. On this premises he invited our attention to the important admitted facts available on the record to the effect that the case was fixed for personal hearing for the first time on 22-12-1983 and immediately the appellants after contacting their Counsel Shri Barjor Singh requested for adjournment well in advance v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case law cited in the impugned order. 6. After considering the arguments so advanced we are of the. considered view that no effective opportunity of being heard was given to the appellants in the peculiar facts and circumstances of the instant case. It is true that the Government of India in the case of Sohana Woollen Mills, Ludhiana reported in 1982 E.L.T. 757 while deciding the revision petition observed that if the opportunity of being heard was once given to the party who failed to avail of the same it cannot be said that the Collector had not complied with the principles of natural justice. But it would appear from that case that it was not the case where the adjournment was sought for but was not given. Likewise, it is true that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple of natural justice that not only the opportunity to hear should be given to the party but it should be an effective opportunity to defend. This Tribunal in the case of Assam Saw Mills and Timber Co. Ltd. v. Collector of Central Excise, 1986 (23) E.L.T. 505 also held that there would be ab initio denial of natural justice if no effective opportunity is given to the party to put-forth his case before the Adjudicating Authority. In the case of M/s. Basant Papers Mill v. Collector of Central Excise 1987 (10) E.C.R. 577, one of us (Member, Judicial) has also taken the same view and held that an empty compliance to the principle of audi alteram partem is not sufficient. In the instance case immediately after the receipt of the notice for pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven before us the bonafides of the said request was not disputed. Not only this it is an admitted fact that a notice of hearing for 30-12-1983 was issued only 3 days back and was received by the appellants only on 27-12-1983 to which they immediately responded and made request for adjournment. It is on record that their Counsel was residing at Gwalior. Under these circumstances asking the appellants to appear at such a short notice appears to be an empty compliance to the principle of audi alteram partem. From the above it would appear to us that no effective opportunity was given to the appellants to put their case before the Adjudicating Authority. Besides, from the various grounds urged before us on the merits of the case also by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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