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TMI Blog2006 (12) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Directorate of Anti-evasion of Central Excise had made raids simultaneously at the factory of the petitioner Company at Tinsukia as well as at various other residences of the Directors of the Company and in the course of the raids, books of accounts and other related papers, documents, bills, price list etc. were ceased. 3. After the aforesaid seizure, the petitioner company was issued with show cause notice dated 12.12.85 alleging that the petitioner had evaded Central Excise duty to the tune of ₹ 1,82,67,650.99 by making misstatement, suppression of material facts and by misdeclaring the price list and misclassification of goods to the Central Excise authorities from time to time for the period from 1981 to 24.02.84. 4. By the show cause notice, the petitioner was asked to show cause as to why: a) Central Excise duty amounting to ₹ 1,28,37,893.28 should not be demanded from and paid by the petitioner under Rule 9 of the Central Excise Rules; b) Central Excise duty amounting to ₹ 6,35,950.58 being the differential duty involving on ex-factory as well as between the ex-factory price (assessable value) and the region wise applicable rates as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectorate of Anti Evasion, Zonal Unit, Calcutta intimated the petitioner that all the records and documents seized from different premises of the petitioner company were transferred to the adjudicating authority and the petitioner company may contact the said authority for the purpose. On the basis of further request made by the petitioner, the Assistant Collector (Techn.) Customs and Central Excise, Shillong by his letter dated 31.12.86 informed the petitioner company that the records were available at the Collectorate Headquarters at Shillong. By the said letter the petitioner company was asked to examine the copies of the relevant records and thereafter to furnish its reply within 10 days, the representatives of the petitioner company carried out the inspection and took extracts from the records. However, again by its letter dated 12.02.87, it made a request to the Commissioner of Central Excise to supply certain more documents. 8. A mention has been made in paragraph 5 of the writ petition about the above correspondences made by the petitioner without, however, annexing the copy of such correspondences. However, the petitioner has annexed a copy of the letter dated 14.03.87 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request made by the petitioner the hearing was reflxed on 26.05.98. On that day the petitioner company submitted a written submission. 12. By Annexure-J communication dated 26.08.98, the Assistant Commissioner Central Excise, Shillong asked the petitioner company to submit its reply within 15 days of receipt of the letter indicating that on failure on the part of the petitioner to do so, the matter shall be decided ex-parte. The petitioner company was also directed to submit an exhaustive list of documents which were allegedly required enabling it to submit a complete reply. Although the petitioner company was requested to respond the communication within 15 days, the petitioner by its letter dated 16.09.98 (Annexure-K) once again requested for supply of documents in reference to its earlier list of 24.04.90 and 13.02.92 without, however, complying with the request made by the respondents for submitting an exhaustive list of documents. 13. From the above narration of facts, it will be seen that the matter is pending for the last about 21 years in the name of non-furnishing of required documents to submit an effective reply. The same very plea as has been raised in the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.08.90 writ petitioner also requested to supply documents lying with the Director General, Anti Evasion, Ahmedabad and seized documents records, and accordingly representative of the writ petitioner received the same on 06.11.90. 17. In paragraph-9 of the counter affidavit it has been stated that the petitioner was asked to appear on 09.02.98 for personal hearing in support of their defence in respect of show cause notice, but a request was made for postponing the same. Accordingly, the request was accepted by postponing the hearing by reflexing the same on 25.03.98. On that day also nobody represented the petitioner company, but a request was made for another date in April. Accordingly the matter was refixed on 26.05.98. On that day also the petitioner did not appear before the authority but submitted one written statement stating that the show cause notice was not maintainable. 18. In paragraph-2 of the counter affidavit in the head Parawise Comments, the respondents have stated that the petitioner collected all the documents from Ahmedabad on 06.11.90 through one Shri R.K. Lahoty, an authorized representative of the petitioner company. Similarly in paragraph-4 of the affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.1996 imposing a cost of ₹ 5000/-. 22. In the impugned order also the plea of the petitioner that the copies of the relevant documents were not supplied with, has been dealt with. In the impugned order while making discussion on all the materials on record and returning the finding, the Commissioner of Central Excise, Shillong who has passed the order, has discussed about the plea in detail. It has been noticed by him that the petitioner company deliberately did not file show cause reply for one reason or another so as to frustrate the speedy adjudication proceeding of the case. He has also noticed as to how immediately after disposal of the first writ petition, the petitioner filed the second writ petition being C.R. No. 795/ 90 challenging the very issue of the show cause notice. The writ petition was dismissed by order dated 10.05.96 with the cost of ₹ 5000/- observing that the petitioner unnecessarily dragged the authority to the Court. 23. The Commissioner has also discussed in the impugned order about the events that took place leading to passing of the impugned order which has been indicated in the affidavit in opposition filed by the respondents. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that some of the documents were not supplied to the petitioner, but in absence of any indication thereof and as to how the same has resulted in prejudice to the defence of the petitioner, same by itself cannot be a ground, to interfere with the impugned proceeding. Thus, in my considered opinion there was no violation of the principles of natural justice towards passing the impugned order. 26. This now leads us to the second issue as to whether the petitioner ought to have availed the alternative remedy by way of preferring appeal to the Customs, Excise and Gold Control Appellate Tribunal. The petitioner instead of exhausting alternative remedy of appeal has invoked the writ jurisdiction. As has been observed by the Apex Court in the decision reported in (1998) 8 SCC 01 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai), the High Court exercising its power under Article 226 of the Constitution of India, has a discretion to entertain or not to entertain a writ petition and that the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after all, it is permissible some time to do a little wrong (per Mukherjee C.J. in Charan Lal Saho v. Union of India 19 Bhupal Gas Disester) SCC 9/705 Para 124. While interpreting legal provisions a Court of law cannot be unmindful of the hard realities of life. In your opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than presidential . 29. I may also gainfully quote the observation of the Apex Court in the case of Secretary, Minor Irrigation v. Sahngoo Ram Arya . 12. Mr. Sunil Gupta, learned Counsel appearing for the petitioner, contended that the remedy before the tribunal under the U.P. Public Service Tribunal Act is wholly illusory inasmuch as the tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said tribunal. We do not agree with these arguments of the learned Counsel. When the statute has provided for the constitution of a tribunal for adjudicating the disputes of a Government servant, the fact that the tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tel reported in (1985) 3 SCC 398, the Apex Court held though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to add changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is Governed. 33. The above principles of law have been reiterated by the Division Bench of this Court. In the decision reported in 2006 (3) GLT 690 (Akhil Kumar Nikhil Kumar and Ors. v. State of Assam and Ors). 34. The Apex Court in the case of State Bank of Patiala v. S.K. Sharma observed thus: 32. Now, coming back to the illustration given by us in the proceeding para, would setting as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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