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TMI Blog1988 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of allegations and the basis thereof: As it appeared, for the reasons earlier stated, that the party had resorted to un-accounted production and illicit removal of Snuff totally weighing 30,279.4 kgs. (net) that is 24066.2 kgs. of Special Brand and 6213.2 kgs. of Sada Brand Snuff. The investigating Officer addressed himself to the task of finding out the quantity of unmanufactured tobacco consumed by the party in the manufacture of the Snuff abovesaid, for which purpose manufacturing sample experiments were carried out at the party s factory on 31-5-1979, 7-6-1979, 8-6-1979 and 12-6-1979 in the presence of its representative. On the basis of the results of the experiments, the Assistant Collector of Central Excise Division-III, Ahmedabad approved the manufacturing formula, according to which the party had manufactured 11.3 kgs. and 11.1 kgs. of Special Brand Snuff and Sada Brand Snuff from 10.0 kgs. of unmanufactured tobacco each. Applying the tested and approved formula, the party had consumed 21,297.52 kgs. and 5,597.48 kgs. of unmanufactured tobacco in the illicit manufacture of special brand snuff weighing 24,066.2 kgs. and 6213.2 kgs. of sada brand snuff respectively whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince last 3 to 4 years they used to receive snuff from M/s. J.V. Rao of Sarkhej in tempo for transport to different parties in Saurashtra. Shri Natvarsinh Pratapsinh Chavda, owner of Tempo No.2694, was interrogated and his statement recorded by the interrogating officer on 24-7-1979. The Principal avertment made by him, in his statement, is that he used to transport snuff in wooden boxes from the factory of the party in Sarkhej to M/s. Rajavir Transport Co., G. Dalabhai, Gurukrupa Transport Co., Mahendra Transport Co. and others all at Narol, for onward transport in trucks and that the party used to pay him Rs.18/- per trip from Sarkhej to Narol. Shri Arvindbhai R. Patel, a partner in M/s.Patel Fulabhai Sons of Dharmaj, referred to above, holding Central Excise Licence in Form L5, admitted in his statement recorded on 21-5-1979 that the deal for the tobacco in respect of which they had issued bill, dated 3-11-1977 was, in fact struck with the party and the tobacco supplied to it. He further stated that they had also received the amount charged in their bill. He, however, did not recollect the name of the grower/ curer from whom the tobacco was purchased. As far as he could re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of manufacture over a considerable period. The delivery of snuff the buyers did not realise that the goods supplied were not duty paid. The quantity of illicit removal has also been determined on experiments and a receipt of 4,000 kgs. of unmanufactured tobacco without entry in the prescribed records has also been unearthed. Considering the evidence discussed in the order of the Collector, there was sufficient basis for the orders passed and the appellants have not been able to refute any of the findings." Hence the present appeal which was originally filed as a Revision Application and transferred to the Tribunal for disposal. 6. We heard Shri A.F. Patel, Advocate for the appellants. Shri Patel reiterated the contentions made in the Revision Application and explained the same. He submitted that the Board did not apply their mind when passing the impugned Orders. He pointed out that the Board referred to a statement recorded from Tejsingh J. Rao and his father . The learned Advocate submitted that the father of Shri Tejsingh J. Rao died long before the proceedings commenced. Therefore, there could be no statement from the father . He further submitted that though the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellants consider that they had some evidence to disprove the allegations made against them. It was their duty and right to present the evidence during the course of adjudication. If they thought that some Central Excise Officers could give evidence within that would help them they should have requested the Collector to summon these officers for cross examination. They could have taken similar action in respect of other witnesses on whom they wanted to rely and produced them for examination. Merely making claims in reply to the show cause notice and then expecting that the Collector would enquire lead to a situation in which ex-parte decision was taken by the Collector. 11. The validity of the ex-parte action taken by the Collector, has, therefore to be examined. We note that the Collector himself recorded the circumstances as follows: The firm was also allowed sufficient time to file reply to the Show Cause Notice. It was also given more than one opportunity to carry out inspection of the document relied upon. After protected correspondence, the firm finally filed a reply to the Notice under his letter, dated 23-11-1980. While referred to the statement given by one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them about personal hearing. This was not a correct expectation. 13. There is no evidence to show that the Collector put the appellants on a final notice rejecting the request for further investigation and giving them an ultimatum about the personal hearing. The material test of observance of the principles of natural justice is that a matter should be decided after giving not only an opportunity for personal hearing; such an opportunity should be manifestly a liberal and unambiguous opportunity for being heard. This should have been done especially when, very clearly, the appellants were labouring under a misappreciation of the process of adjudication. Many facts were there raising questions to be examined by the Adjudicating Officer. A just and fair decision would not have been possible without the appellants being given a very practical and actual opportunity to produce their evidence. No doubt if they still failed to avail of an opportunity inspite of a warning and inspite of getting a chance they have to take the consequences. We feel that in this case the fault of not appearing for the personal hearing cannot be placed entirely on the appellants. Whatever be the position, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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