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TMI Blog2017 (3) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... sarees/ dress materials and other fabrics and the second petitioner is a Director of the first petitioner company. The petitioners' premises came to be visited by the Central Excise officers in January and March 2001, pursuant to which, a show cause notice dated 23.01.2006 came to be issued for recovery of duty. The adjudicating authority passed an order-in-original confirming the demand, which order came to be challenged by the petitioners before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "the Tribunal") on the ground of violation of the principles of natural justice, as the panchnama was tampered with and no cross-examination was granted. The Tribunal allowed the appeal and the matter came to be remanded to the adjudicating authority to allow cross-examination. Pursuant thereto, the petitioners submitted a list of three persons whom they wanted to cross-examine. It appears that after two of the witnesses were cross-examined, the adjudicating authority, vide letter dated 9.9.2015, fixed the matter for final hearing on 22.9.2015 or 29.9.2015 or 6.10.2015. It is the case of the petitioners that their unit was closed and transferred and they di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice of personal hearing in accordance with the provisions of law. 4.2 The attention of the court was further invited to the fact that by a single consolidated notice dated 9.9.2015, the matter had been fixed for final hearing on three dates, namely, 22.9.2015 or 29.9.2015 or 6.10.2015 to submit that nonappearance on the part of the petitioners pursuant to the said notice was considered as substantial compliance with subsection (2) of section 33A of the Act. It was further submitted that the proviso to section 33A of the Act provides for grant of not more than three adjournments to a party during the proceeding and that in the present case, the adjudicating authority has stated three dates in one notice and has considered the same to amount to three adjournments and, accordingly, has decided the matter ex parte, which is not permissible in law. Reference was made to the decision of the Tribunal in the case of Afloat Textiles (P) Ltd. v. Commissioner of Central Excise, Vapi, 2007 (215) E.L.T. 198 (Tri-Ahmd.), wherein the Tribunal has noted that the adjudicating authority had observed that in terms of the proviso to section 33A of the Central Excise Act, 1944, adjournments cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples of natural justice, does not merit acceptance. It was pointed out that earlier the proceedings had been conducted before a particular Commissioner who was the adjudicating authority, who, in the meanwhile, came to be transferred, and a new incumbent took over the charge as Commissioner with effect from 28.8.2015. It was submitted that the adjudicating authority for the purpose of compliance of principles of natural justice issued fresh notice to the petitioners as well as co- noticees for personal hearing and also gave them opportunity to appear before him on three days as were convenient to them, that is, 22.9.2015, 29.9.2015 and 6.10.2015. It was submitted that the dates of personal hearing had been communicated in advance to the petitioners vide letter dated 9.9.2015 and that while one notice addressed to one Ramchandra M. Tandel, one of the Directors of the petitioner company came to be returned "undelivered", notices to the petitioner company as well as two co-noticees were duly served. It was submitted that though the notices were served upon the petitioner company as well as two other co-noticees, none of the persons who received the notices remained present or appeared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of section 37C of the Act, which provide for service of decisions, orders, summons, etc. and reads thus:- "37C. Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)], to the person for whom it is intended or his authorised agent, if any: (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in subsection (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during the proceeding." 10. Section 33A of the Act provides for giving an opportunity of hearing to a party in a proceeding by the adjudicating authority. Sub-section (2) thereof, provides for granting time to the parties and for adjourning the hearing for reasons to be recorded in writing. The proviso thereto circumscribes the power to grant time conferred under sub-section (2) of section 33A of the Act, by providing that no such adjournment shall be granted more than three times to a party during the proceeding. 11. Thus, by virtue of the provisions of sub-section (2) of section 33A of the Act, when a personal hearing is fixed, it is open to a party to seek time by showing sufficient cause and in such a case, the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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