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TMI Blog1987 (7) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accounts relating to the business of the said Narayanankutty and the statement recorded from him revealed that a substantial quantity of tread rubber, manufactured in the appellant s factory, had been clandestinely removed without payment of any Excise duty. The authorities in continuation of the investigation effected a search of the appellant s factory and residence on 3-8-1985 and recovered a number of incriminating documents and records evidencing manufacture and clearance of tread rubber without payment of Central Excise duty. Appellant, Shri V.K. Thampi also gave a statement which was inculpatory in nature and confessional in character with reference to the production and clandestine removal of goods without payment of excise duty. The appellant also stated that he had not taken any Central Excise licence as per law nor made any declaration for not taking any such licence. It is in these circumstances, after further investigation, proceedings were instituted against the appellant, which eventually culminated in the present impugned order now appealed against. Shri Dinesh, the learned counsel for the appellant at the outset submitted that inasmuch as the appellant did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made to suffer on that score and, therefore, the ex parte order may be set aside and the appellant afforded an opportunity to put forth his case on merits. 5. The learned counsel further contended that the impugned order itself is not in accordance with law inasmuch as Rule 233A of the Rules imposes on the adjudicating authority a statutory obligation to give the appellant an opportunity of being heard by fixing up a date of hearing. It was urged that the requirement regarding personal hearing is independent of the opportunities to submit a written representation against the show cause notice and this independent opportunity cannot be done away with by clubbing the two requirements in the show cause notice. The learned counsel also in this connection placed reliance on the rulings of the Tribunal in the case of Orient Woollen Textile Mills Pvt. Ltd. v. Collector of Customs, Bombay , reported in 1986 (25) E.L.T. 574 (Tribunal) and the case of Mubarakdin Bidi Factory v. Collector of Central Excise, Indore (M.P.), reported in 1987 (27) E.L.T. 474 (Tribunal), and contended that the ratio of the said rulings would squarely apply to the facts of the present case. It was further ur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant s counsel at the earlier stage, would not avail the appellant. The learned S.D.R. further submitted that the concern of the appellant being admittedly a proprietary concern, the appellant cannot complain or have any grievance that the adjudicating authority had not understood the legal status and character of the appellant different from its proprietary concern. The learned S.D.R. drew our attention to the fact that the notice issued in the name of the firm has also been received by the appellant and the appellant also has been served with a separate notice. The appellant, representing the firm, has received the show cause notice. Admittedly the firm is not a partnership firm but it is only a proprietary concern. The learned S.D.R. submitted that the reward awarded by the Collector is only for detection and investigation as per the regulations and no prejudice or bias can be attributed to the adjudicating authority on that score. The learned S.D.R. further urged that there was no retraction by the appellant at all and the appellant has also not produced any copy of the letter of retraction. The learned S.D.R. submitted that the adjudicating authority has considered all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to wait till the documents were received . When the adjudicating authority has given enough opportunities to the appellant and when the appellant having received the earlier communication as well as the reminder, has not responded to the same, in our view, there is no other alternative to the adjudicating authority except to pass an order with reference to the materials available on record. The plea of the learned counsel that one more opportunity should have been afforded to the appellant in terms of Rule 233A of the Rules is not legally tenable. The purport of Rule 233A is that before a person is called upon and fastened with a liability and proceeded against, he should be given, before an order confiscating any property or imposition of any penalty, a written notice stating the ground on which it is proposed to confiscate such property or imposing such penalty and a reasonable opportunity of making a representation in writing within such time as may be specified in the notice against the ground of confiscation or imposition of penalty mentioned therein and of being heard in the matter. In the instant case the show cause notice clearly specifies this statutory requirement. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5638/86 U, filed by the appellant, seeking a writ of certiorari or any other appropriate writ or order for quashing the impugned order on grounds of violation of the principles of natural justice. The question that was canvassed before the High Court was the same as was contended before us and the High Court has observed, 2. It would appear that the petitioner has got into a difficult situation for defaults not attributable with the Department, at any rate directly and substantially. The petitioner certainly has got serious handicaps in the resultant situation. That is apparently due to the fact that there has not been an effective or prompt attention paid by the person with whom the matter had been entrusted. That, at any rate, is a prima facie impression gatherable from the materials on record ...... 3. It is difficult to posit a case of an arbitrary violation of the principles of natural justice in the above circumstances". The audi alteram partem rule embodies the principle that a reasonable opportunity of being heard is to be given to the interested person. This requirement is satisfied if in spite of an adequate notice by the authority to him to present his case, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case , referred to supra, there is a clear finding that two letters were written by the appellants and their advocate seeking extension of time to reply to the show cause notice and the adjudicating authority in the order in that case had not dealt with the request made by the appellants in that case for extension of time as to whether it was granted or not granted. The specific request for copy of the documents was also not responded to in that case and, therefore, it was held that there has not been proper consideration of any of the issues involved in the matter. In the Mubarakdin Bidi Factory case, reported in 1987 (27) E.L.T. 474 (supra), reliance was placed on some documents by the adjudicating authority in the show cause notice and the appellant therein made a special request for the supply of the same while denying the charges levelled in the show cause notice and the copy of the documents were not supplied. The appellant also, it has been found factually in that case, was not given adequate opportunity to inspect the documents. We do not see any relevance of the case law cited to the facts of this case. In our opinion, the rulings referred to have absolutely no applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other in the appellant s individual name. Therefore, the plea of the learned counsel that the impugned order is bad in law by reason of misapplication of mind on the ground that the adjudicating authority misconstrued or has not properly construed the legal status and character of the appellant in passing the impugned order is utterly bereft of any substance. 10. The plea of the learned counsel in regard to the pecuniary bias and pre-conception before passing the impugned order on the ground that reward for detection and investigation was sanctioned to the officers concerned, is legally untenable. The maxim nemo judex in re sua literally means that a man should not be a judge in his own cause. It has also come to mean that a judge must be impartial. This is known as the rule against bias. It is only a direct pecuniary interest, that would disqualify a person from acting as a judge. Therefore, by sanctioning reward pecuniary bias of any kind as understood in law, cannot be attributed to the adjudicating authority. In this connection we would like to note that the learned counsel has not filed any certified copy or authenticated copy in regard to the alleged sanction of reward. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 12. The last question that survives for our consideration is with reference to the quantum of fine and penalty. The learned counsel for the appellant is not correct in his plea that special reasons have not been given for confiscation of the plant, land and machinery etc. We have carefully gone through the detailed judgment of the adjudicating authority and he has given proper reasoning not only for the conclusion reached but also for effecting confiscation of the plant, land and machinery. The quantum of duty, in our opinion, has been correctly arrived at on relevant data referred to by the adjudicating authority in the impugned order. No doubt imposition of penalty is in exercise of judicial discretion by a quasi-judicial authority. Taking into consideration the facts and circumstances of this case, we are inclined to hold that interests of justice would be met if the penalty of Rs. 5 lakhs imposed on M/s. Vitco Rubber Industries is reduced to Rs. 2 lakhs (Rupees two lakhs) and we order accordingly. We also reduce the quantum of fine from Rs. 50,000/- to Rs. 25,000/- (Rupees twenty-five thousand) in respect of the land, plant and machinery imposed under the impugned order. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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