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TMI Blog2007 (4) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... DHAKRISHNAN,J.) 1. By this Petition, the Petitioner is challenging the Order-in-Original dated 3 rd April, 2007 passed by Respondent No.3 rejecting the rebate claims filed by the Petitioner and adjudicating the same. 2. The brief facts are, that the Petitioner is a Company which manufactures "Mentha Oil". The Petitioner claims that it had sent the said Mentha Oil to Tien Yuan India Private Limited after paying the requisite duty. The Tien Yuan India Private Limited manufactures "Menthol" out of the Mentha Oil and the same is exported. The said Tien Yuan India Private Limited had given disclaimer in favour of the Petitioner to enable the Petitioner to claim back the rebate of the excise duty paid by the said Tien Yuan India Privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is not entitled to any rebate. In the said Petition, after hearing the parties for some time, it appears that the Court permitted the Petitioner to withdraw the above Petition, in view of the statement made by the learned Counsel for the Respondents, that all the refund claims filed by the Petitioner for the period April-2006 to November,2006 will be decided within a period of six weeks from the date of the said order. 6. In pursuance of the aforesaid order dated 23 rd February, 2007, the Maritime Commissioner of Central Excise had issued a show cause notice on 13 th March, 2007 to show cause as to why the refund claims of the Petitioner should not be rejected on the grounds set out therein. In the said show cause notice it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be also noted that between the period 26 th March, 2007 to 30 th March, 2007, subsequent to the personal hearing granted by Mr.Padmanabhan Ravikumar Nair, the Commissioner of Central Excise, issued a show cause notice to Tien Yuan India Private Limited calling upon them for recovery of certain excise duty, education cess etc. and also interest and proposed penalty. 9. In view of the aforesaid, the Petitioner apprehended that said Mr.Padmanabhan Ravikumar Nair will not adjudicate the rebate claims fairly and had filed a Writ Petition No.2346 of 2007 seeking a restraint order from proceeding with show cause notice dated 13 th March, 2007. It appears that said Writ Petition was served on the learned Advocate for the Respondent Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eking a restraint order against him from proceeding with the said show cause notice. 14. Mr.Dada, the learned Senior Counsel also strongly contended that the impugned order passed by by Mr.Padmanabhan Ravikumar Nair Respondent No.3 is clearly mala-fide and that the apprehensions of the Petitioner had come true. 15. Mr.Dada, the learned Senior Counsel also sought to contend that even on merit, the order is not sustainable. 16. Mr.Dada, the learned Senior Counsel contended that in this case, the bias is explicit and he emphasized that the principle of bias is not only based on the principle to avoid possibility of partial decision but also to ensure public confidence in the impartiality of the administrative adjudicatory proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Petition No.7838 of 2006. Over and above, as Mr.Dada, learned Senior Counsel pointed out that the act of Mr.Padmanabhan Ravikumar Nair Respondent No.3 himself insisting on proceeding with the matter clearly shows a "reasonable likelihood of bias" and ultimately, a party should feel satisfied that he has been afforded a fair opportunity of hearing and not by a person with preconceived notions in the matter. 19. The first principle of BIAS is that the adjudicator should be disinterested and unbiased. That the prosecutor himself should not be a judge. That the judge should be a neutral and disinterested person. That a person should not be a judge on his own cause. The main basis of this principle is that justice should not only be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is vital to note that on 3 rd April,2007, Mr.Nair issued a corrigendum to the show cause notice, whereby the demand was increased by nearly Rs.25/-lacs. Admittedly, Mr.Nair gave no opportunity to the Petitioner to refute the same, as the impugned order itself was passed on 3 rd April,2007. Hence, the impugned order dated 3 rd April, 2007 is totally unsustainable in law. 23. Under the aforesaid facts and circumstances of the case, we feel satisfied that the acts of Respondent No.3 Mr.Padmanabhan Ravikumar Nair passing the said Order-in-Original dated 3 rd April,2007 is actuated with malice and the same cannot be sustained in law. Under these facts and circumstances of the case, Rule is made absolute in terms of prayer clauses ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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