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TMI Blog1993 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... tation. The Chief Executive has taken ill and had gone out of Bangalore for treatment and due to unavoidable circumstances he had not made arrangements for representation before the learned Collector on the date of personal hearing. The Managing Director was also not aware of it. It was, therefore, prayed the since the order is ex parte and since the appellant has an arguable case and there are contentious issues, the appellant may be afforded, in the interests of justice, an opportunity to argue the case, by remanding the appeal after granting waiver of pre-deposit of duty. The learned Counsel also submitted that a finding is given in Para 17 of the impugned order that no firm in the name of Sruti Sales Corporation at Bangalore exists and the invoices raised in the name of the said firm are bogus. It was urged that there is absolutely no whisper of an allegation in this regard in the show cause notice and for the first time a finding is given in the impugned order and therefore, the learned Counsel pleaded that the impugned order is not sustainable for this ground as well and prayed that if an opportunity is given the appellant would be able to establish the existence of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r authority s order has to be set aside as there had been denial of the principles of natural justice inasmuch as the learned lower authority has decided the matter ex parte without giving the appellant an adequate opportunity of hearing. In this connection the learned Advocate, while conceding that time for reply to show cause notice was extended on appellant s request pleaded that the learned lower authority taking into account the plea of the Chief Executive being unwell fairly allowed the time for reply and fixed the date of hearing as 21-1-1993. The appellant, he pleaded, sought for another adjournment as the Chief Executive who was to attend the case had not recovered and had gone out of Bangalore. The learned lower authority posted the matter again on 12-2-1993 and thereafter, he pleaded, since the Chief Executive was still unwell, nobody appeared for the personal hearing and the learned lower authority proceeded to pass the ex parte order. He has pleaded that the learned lower authority could not have proceeded to adjudicate the matter in the absence of any representation from the appellant on the date of the personal hearing. He made a fervent plea that the appellant on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned lower authority nor any written request was sent by the appellant for adjournment. In a situation like this, therefore, the question that arises is what the lower authority is expected to do. It is pertinent to note in this context that the appellant did not bother to file their reply to the show cause notice even after the extension of time had been given for this purpose more than once. There is no explanation forthcoming as to why they had been delaying matters even in the matter of their reply to the show cause notice when a demand of over Rs. 3 lakhs had been made against them. Obviously, it appears that they were not very serious in joining the proceedings. The learned lower authority proceeded to adjudicate the mater when he found that the appellant has failed to respond in any way to the notice of hearing fixed for 12-2-1993. It was put to the learned Advocate that why in case even if the Chief Executive was not available, nobody else from the appellant s office could not go to the Collector with a request for adjournment or why even the Advocate himself could not make a representation. The learned Advocate pleaded that he had no instructions and he could not g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. It is seen from the Balance Sheet filed that the appellants sales turnover is over Rs. 10 crores and they have shown a profit of over Rs. 34 lakhs and they have also made a provision for dividend of over Rs. 23 lakhs and they have also transferred an amount of Rs. 10 lakhs to the General Reserves as reflected in the Profit and Loss A/c. for the year ended 31st March, 1993. The appellants have also outstanding amounts from sundry debtors to the tune of over Rs. 44 lakhs. Taking into consideration the turnover, profitability and other factors, I hold [that] there is no case of financial hardship has been made out. 10. Taking into consideration all the pleas made and in the facts and circumstances of the case, I order that on the appellants pre-depositing the duty of Rs. 3,17,782.58 the pre-deposit of the penalty shall stand dispensed with and recovery of the same stayed pending disposal of the appeal. The date for compliance will be fixed after the order of the Third Member resolving the point of difference. Sd./- V.P.Gulati Member (T) POINT OF DIFFERENCE 11. Whether in the facts and circumstances of the case the appellants should be given one more opportunity of hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment or making arrangement for appearance before Collector. The learned Advocate pleaded that the appellant is a faithful old tax payer and no adverse inference should drawn and an affidavit to this effect was filed by the Managing Director and no counter affidavit has been filed by the respondent in this regard. He relied on the order passed by Member (Judicial) and pleaded that since it is an adjudication order, even without reliance to the Show Cause Notice, an ex parte order, it will amount to gross injustice if the order passed by Member (Judicial) for remand is not accepted. The learned Advocate also argued that in Para 17 of the impugned order there is an observation by the learned Collector that certain investigations were made, but no copy of the investigation report has been furnished and as such the order is ab initio bad and void in the eyes of law. 14. Shri Subramanian, the learned Junior Departmental Representative who has appeared on behalf of the Respondent relied on the order passed by Member (Technical). He argued that there is negligence on the part of the appellant for not appearing on the day when the matter was listed for hearing. Nothing prevented the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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