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TMI Blog1993 (7) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the fact of suppression of fact and evasion of duty and has considerably relied upon this allegation of concession on the part of the Counsel for levying duty and penalty on the petitoner. The learned Counsel made an impassioned plea that this observation of the adjudicating authority is absolutely false and incorrect and has also brought disrepute to the Counsel s professional integrity and propriety. Shri Raman vehemently contended that during the personal hearing before the adjudicating authority, he extensively argued in favour of his client against the Department s charge of suppression and consequent evasion of payment of duty and this fact is also recorded in the notes of personal hearing, recorded by the adjudicating authority himself. Therefore, the finding given in the impugned order as if the Counsel conceded their charge of suppression in regard to evasion of payment of duty against the interests of his own client is totally false and uncalled for. Since the conduct, integrity and professional propriety of the Counsel himself was at stake by reason of such false finding, he was totally nonplussed and touched to the quick as it were by the uncalled for incorrect find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld make concession giving away the case of his party in total disregard of professional probity. The learned Counsel expatiated on the above factual background at length with detailed reference to his own affidavit in the High Court, the papers relating to the Writ proceedings in the High Court and highlighted the fact that if at all the appellant had been guilty of anything it was only by being over vigilant and active in pursuing legal remedies. The learned Counsel also referred to the criminal prosecution launched by the Collector in CC No. 24/89 against the appellant and three senior Executives in the Court of Additonal Chief Judicial Magistrate, Madurai, and how the appellant had to seek recourse to High Court to file an application under Section 482 of the Cr. P.C. for quashing the same and the High Court in CMP No. 9301 of 1989 by Order dated 5-10-1990 quashed the same. The learned Counsel, therefore, contended that the appellant has been very vehemently and assiduously without any loss of time pursuing the course of legal action before the highest Court of the land in the State by Writ proceedings and the appellant cannot be said to be guilty of any laches. Observations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector on the one side and the party on the other side. Initially the adjudicating authority completed the personal hearing on 10-6-1988 and an order was passed on the same day and Shri S.V. Subramanian, Senior Counsel who argued before the adjudicating authority submitted written arguments on the following Monday. Be that as it may, the order was communicated by a special messenger at the appellant s factory about 180 Kms. away from Madurai, which is an unusual feature. For evasion of duty of Rs. 20,40,809.69 a levy of penalty of Rs. 1.00 crore is a striking feature in this case. This order was challenged in Writ proceedings and eventually the Division Bench of the Madras High Court set aside the same on 30-1-1989. In the de novo adjudication the penalty of Rs. 1.00 crore imposed by the adjudicating authority was reduced to Rs. 1.00 lakh. We note that the same adjudicating authority dealt with the case on both the occasions. We should confess that we find it rather difficult to appreciate as to how the learned adjudicating authority who imposed a penalty of Rs. 1.00 crore at the first instance reduced the same to Rs. 1.00 lakh after the matter was remanded by the High Court. A peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear of the controversy to vindicate his honour, integrity and professional propriety as an Advocate. Therefore, in the above factual background of animated and excited feelings between the authorities and the lawyer, it would be naive to characterise the proceedings resorted to by the appellant by way of a Writ Petition and Writ Appeal in the Madras High Court seeking to quash the order and also the findings in the impugned order of the Collector of concession relating to charge of suppression as either an act of inaction or a wasteful exercise. In our view, the bona fides of the appellant cannot be called in question having regard to the factual background of the proceedings. The learned Single Judge of the Madras High Court in the Writ order has also observed as under : The petitioner is directed to file an appeal before the appropriate authority. It is also open to the petitioner to file an application for condonation of delay explaining the circumstances under which he filed the appeal belatedly. He can mention the truth of pendency of the Writ petition in this Court. The appellate authority will certainly take into account these facts while considering the question of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have honestly believed perhaps on advice that they could get the relief they wanted in the writ petitions. Writ petitions are no doubt not encouraged when alternative remedies are available. But the exercise of the discretion by the various High Courts in this matter has not been uniform though certain propositions in regard to that matter may be considered to have got recently settled. We cannot as we think approach the question of sufficient cause from the result of the writ petitions either. No doubt there was a delay of about thirty days in filing the appeals even after the result of the writ petitions was known. But that in the circumstances is explainable. Apparently they were waiting for copies of the orders of the High Court in the Writ Petitions. The long delay we are inclined to think in filing appeals was more due to the time taken by the pendency of the writ petitions in this Court. We are of the opinion that on the facts and circumstances of these cases, the delay ought to have been condoned. The petitions are allowed. The orders of the Appellate Assistant Commissioner and of the Tribunal are set aside and the Appellate Commissioner is directed to take the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat portion of the impugned order is so integrally connected with the rest of his findings that they are almost inseparable. However, to a specific query from the Bench to the D.R. as to in the event of the Tribunal condoning the delay whether the Department would be able to independently sustain the order de hors the alleged concession by the Counsel, the learned D.R. in the peculiar facts and circumstances of the case sumitted that the only and proper course would be to remand the matter for fresh adjudication. We agree with the submissions of the learned D.R. In view of the above while granting waiver of pre-deposit and taking up the appeal we set aside the impugned order and remand the matter to the adjudicating authority for disposal of the matter afresh in accordance with law, after due notice to the parties. We take note of the fact that the present Collector of Central Excise to deal with this matter is different from the officer who passed the impugned order. It is open to the appellant to put forth all his contentions in accordance with law and inasmuch as the matter is pending for a fairly long time, we direct the adjudicating authority to dispose of the matter as expedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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