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TMI Blog2021 (4) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... is given. Here not only there is a question of availing opportunity of hearing, the very service of the show cause notice is also seriously questioned and we also could notice from the pleadings before us that neither the show cause notice was served upon the petitioner nor was he served notice of personal hearing. Again, there is nothing to indicate as to how this affixing at company premise should be construed as sufficient notice to the petitioner nor is it found on record from any document that he was made aware of the show cause notice which led to the order impugned and therefore, merely because in reply to another show cause notice, he has been made aware also cannot furnish the ground to assume that he was aware of the show cause notice, the order of which is impugned in this matter. Such assumption and presumption are absent in the statute and they cannot furnish the basis to sustain the order of huge amount of personal penalty. The foundation of principle of natural justice is audi alteram partem, the necessity of grant of opportunity of hearing and no party is to be condemned unheard. Here, there appears to be a flagrant violation of the said principle which necessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the second unit located at Village Samiyala, Padra Taluka, District Vadodara. The petitioner was functioning from Samiyala factory of DPTL. 2.4. It is the case of the petitioner that the officers of the Directorate General of Goods and Services Tax Intelligence,Vadodara Regional Unit undertook search operations at the factory premises of DPTL on 23.09.2014. It is urged that the officer searched both the factory premises of DPTL and resumed voluminous documents alleged to be incriminating in nature. Various statements have been recorded of the different persons which included the petitioner also. He later on left DPTL in June 2016 due to ailment of his mother and settled in Chennai. He has filed form No. 26AS with Income Tax Department to substantiate this version of his. According to him, no notice had been received from the respondent nos. 2 to 4 till his date of retirement. 2.5. It is the say of the petitioner that show cause notice issued on 10.10.2017 by the Additional Director General, DGGSTI, Zonal Unit, Surat being No. DGGSTI/SZU/36-13/2017-18 has not been received by the petitioner, the order which is impugned here. Whereas the one which had been issued and replied, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the alternative remedy. 3. On issuance of notice, the respondents have appeared and filed the affidavit-in-reply. The same has been filed by Dr. Satish Dhavale, Commissioner, Central GST Central Excise, Vadodara-I denying all the averments in toto. 3.1. The preliminary objection is with regard to the maintainability of the present petition on the ground of availability of statutory alternative remedies since the challenge is to the adjudication order dated 11.02.2019 passed by the Commissioner. According to this reply, as provided under Section 35(B) of the Central Excise Act, 1944 the order dated 10.06.2019 passed by the Commissioner is required to be challenged before the Customs, Excise Service Tax Appellate Tribunal by filing Appeal. It is only in order to avoid the pre-deposit to the tune of ₹ 17.14 lakhs that the writ petition has been chosen to overreach the process mandated under the law, which should not be permitted. It is reiteratively emphasized that the way prescribed by the statute should not be permitted to be overreached. It is further emphasized that the details of service of show cause notice dated 10.10.2017 has been communicated on 19.12.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector of Operations and to the Chief Administrative Officer of M/s. DPTL Shamiyala and hence, they have been held liable for penalty separately under Rule 15(1) of the Cenvat Credit Rules 2014. The physical stock verification was done by them and the Panchnama was drawn in presence of independent witnesses which was signed by the company representative and no objection had been raised by the petitioner. He also had agreed to the conditions mentioned in the Panchnama. The actions, therefore, initiated by the respondent are in accordance with law. 4. The additional affidavit is also filed for and on behalf of respondent nos. 3 and 4 pursuant to the order passed by this Court on 26.02.2021. 5. We had directed learned counsel Mr. Priyank Lodha appearing for the respondents to take instructions as to how the change of address came to the notice or knowledge of the respondents as at no point of time, the personal hearing notice had been communicated to the petitioner due to his change of address on account of his having given resignation from the services of the company. All notices concerning the petitioner had been affixed at the company premise however, once the matter had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be sustained for not having issued the show cause notice and in absence of any such proof of service on the part of the respondent. And also, for not having availed any opportunity of hearing, the order-in-original needs to be quashed so far as the present petitioner is concerned. He must be given the personal hearing and after availing the opportunity as required under the law, the matter should be decided. Learned advocate therefore has earnestly urged this Court to show the indulgence. 8. Learned Standing Counsel Mr. Lodha appearing for the respondents has urged that there is no intimation to the respondent of his not continuing to work with the company. It is with much difficulty, the office could find the address of the petitioner . The only issue is that the show cause notice of the company have been affixed as provided under the law. According to him, it is permissible under the law to affix the same if the person is to be duly served either the decisions, order, summons or notice. He relied on Section 37(C)(b) that if the decision, order, summons or notice cannot be served under the manner provided in Clause (a), by fixing the copy of the same in some conspicuous p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relegated the present petitioner to CESTAT instead of entertaining this petition, however, noticing the settled position of law that when there is a gross and clear violation of principles of natural justice, despite the availability of the alternative remedy, writ petition under Article 226 requires to be entertained. The petitioner when claimed violation of natural justice and non affording of opportunity of hearing, to that limited extent, this Court can entertain writ petition. It, however, would allow the liberty to the respondent to follow the law and proceed. 12. We have chosen not to enter into the merits of the matter but having noticed from the entire gamut of facts that the petitioner had already left the services of DPTL way back in the year 2016 and when the same is substantiated by the documents which is of none other than the Income Tax Department of the year 2017-18, there is nothing to doubt in the version of the petitioner. It is also not being disputed by the respondent authority that all attempts to serve the petitioner, the show cause notice had failed and therefore, the notice which was issued was sent by the speed post and the same had been affixed as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, when the order impugned is duly served upon his personal address at Chennai and if that could be done, there was no earthly reason as to why at an earlier point of time, show cause notice and other notices of hearing could not have been served upon him. Again, there is nothing to indicate as to how this affixing at company premise should be construed as sufficient notice to the petitioner nor is it found on record from any document that he was made aware of the show cause notice which led to the order impugned and therefore, merely because in reply to another show cause notice, he has been made aware also cannot furnish the ground to assume that he was aware of the show cause notice, the order of which is impugned in this matter. Such assumption and presumption are absent in the statute and they cannot furnish the basis to sustain the order of huge amount of personal penalty. The foundation of principle of natural justice is audi alteram partem, the necessity of grant of opportunity of hearing and no party is to be condemned unheard. Here, there appears to be a flagrant violation of the said principle which necessitates indulgence. 15. Resultantly, without touching the merit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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