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TMI Blog2018 (11) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated September 21, 2007 being passed by the said Commissioner. It is elementary that when some matter is used against a person to condemn such person, such person must be afforded an opportunity to look into such matter and furnish any explanation in such regard. At any rate, an opportunity to furnish an explanation must always be afforded. If such opportunity is not afforded but the matter is relied upon to render an adverse finding against such person, it would amount to the breach of the fundamental canons of natural justice - In the present case, it is evident that the finding rendered by the said Commissioner in the order dated September 21, 2007 is almost exclusively based on the adverse report of the jurisdictional Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral justice in course of the Commissioner, Central Excise, Kolkata-III Commissionarate passing the order that was challenged by way of a petition under Article 226 of the Constitution. 2. It is elementary that an order in respect whereof some other remedy lies may not be amenable to a challenge under Article 226 of the Constitution of India unless the challenger can demonstrate gross violation of the principles of natural justice or the order being absurd to the meanest mind. Even though such grounds are also available by way of a regular remedy of appeal or revision or the like, these are the exceptions to the self-imposed restriction exercised by the writ Court not ordinarily entertaining a challenge by way of a petition under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such freight charges, which remained short-paid for such undervaluation was proposed for recovery in terms of Section 11A(1). The Noticee during P.H. said that the freight charges, on which the demand is raised is not acceptable, however they did not come forward with any figure/calculation of their own to justify their stand. The Noticee has made no submission either as to merit of the case during the present proceedings. 5. It is plain to see from the passage quoted above that the said Commissioner relied mainly on the report of the jurisdictional Assistant Commissioner of Central Excise and the adverse observations or remarks therein qua the asssessee and the assessee s conduct. The said Commissioner was persuaded by the contents of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that culminated in the hearing afforded by the said Commissioner. Accordingly, the order of the Commissioner in such regard cannot be upheld. 9. In the judgment and order of the single Bench dated March 17, 2016 impugned in the present appeal, the ground canvassed by the writ petitioner was dealt with in the following paragraphs : The contention on behalf of the petitioner that the principles of natural justice have been breached by the adjudicating authority in passing the impugned order is without any basis. Admittedly, the petitioner was afforded adequate opportunity of hearing. The petitioner was duly represented before the adjudicating officer. The adjudicating officer heard both the parties. The adjudicating authority has giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adversary and the adversary had due opportunity to deal with the same. There is no onus on the party who had not been favoured with a document to seek the document for there to be a breach of the principles of natural justice. It appears that erroneous aspects of the principles of natural justice were adverted to in the relevant paragraphs in the order impugned and the answers rendered were not apposite in the context. 11. Nothing in this order should be construed to be a pronouncement on the merits of the claim against the assessee. The judgment and order impugned of the single Bench is not sustained since it failed to take into consideration the nature of the breach of the principles of natural justice that had been carried to it by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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