9911796707
TMI Blog1994 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... d Maleic Anhydride. A show cause notice came to be issued to the first respondent on 17-1-1991 in O.C. No. 80 of 1991 as to why credit on Marlotherm should not be denied on the ground that the same is not an input, as it is not used in the manufacture of the final products. The petitioners were importing Marlotherm and the countervailing duty paid was availed as credit. The petitioners having given reply to the said show cause notice, attended personal hearing on 19-8-1992. After considering the written submissions, documents and evidence, the first respondent passed an order dated 22-4-1993 dropping the further proceedings and thereby permitted the petitioners to avail Modvat credit on Marlotherm. The Collector of Central Excise, exercising power under Section 35E(2) of the Central Excises and Salt Act, 1944 (for short, `the Act'), reviewed the order dated 22-4-1993 passed by the first respondent and directed the first respondent to apply to the second respondent. Accordingly, an application was made to the second respondent by the first respondent against his own order, dated 22-4-1993 in Appeal No. 5/94 (M) (D). A copy of the said Appeal Memorandum was served on the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, this writ petition is filed contending that the second respondent has passed the orders dated 8-4-1994 and 23-5-1994 in gross violation of the principles of natural justice; the Act nowhere contemplates seeking of personal hearing by the respondent in Appeal. When the cross-objections were not required to be filed under Section 35B(4) of the Act and when the petitioners did not file any Appeal under Section 35A(1) of the Act, the question of their seeking personal hearing in the Appeal filed by the first respondent did not arise. The second respondent ought to have given an opportunity of personal hearing, which is a basic requirement in a quasi-judicial proceeding. The second respondent without proper consideration of the material on record has passed an adverse order, affecting the rights of the petitioners and that too without hearing them. 3.Mr. N.V. Venkataraman, learned counsel for the petitioners urged : When the entire proceedings initiated by the show cause(i) notice dated 17-1-1991 in O.C. No. 80 of 1991 seeking to deny the credit on Marlotherm were dropped by the first respondent on being satisfied that the Marlotherm was an input used in the manufacture of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order; ......... The order of the Collector (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision. ..... Appeals to the Appellate Tribunal :35B. ..... ..... ..... On receipt of notice that an appeal has been preferred under(4) this Section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). ..... ..... Orders of Appellate Tribunal35C. The Appellate Tribunal may after giving the parties to the(1) appeal an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y succeeded before the first respondent in as much as the proceedings initiated by the issue of show cause notice dated 17-1-1991 in O.C. No. 80/91 were dropped in entirety by the order of the first respondent dated 22-4-1993. Hence the petitioner had no reason or cause to file an appeal against the said order under Section 35 or to file cross-objections under Section 35B(4) of the Act. Section 35A(1) provides opportunity of hearing to the appellant, if he so desires. Section 35B(4) enables a party against whom the appeal is filed to provide cross-objections even though he may not have appealed against such an order. Since the petitioner was not aggrieved by any part of the order dated 22-4-1993, availing the opportunity of hearing under Section 35A(1) or 35B(4) did not arise. As there was no need to file appeal or cross-objections and as a matter of fact also the petitioner neither filed appeal nor cross-objections. 6A.The argument of the learned counsel for the respondents that the petitioner did not avail the opportunity given to him by the notice dated 11-1-1994 issued by the second respondent in as much as in response to the said notice, the petitioner did not express its de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reading of Sections 35A(1) and (3), 35B(4), 35C(1) and Section 35E(4) suggest that the opportunity of hearing is to be given in a case like the one on hand. This apart the opportunity of hearing under the provisions of the Act is not expressly or by inevitable implication is excluded. 7.In Union Of India v. Col. J.N. Sinha (1971 SCJ 655) the Supreme Court, in para 8 has stated thus : "Fundamental Rule 56(j) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this court in Kraipak and Others v. Union of India (AIR 1970 SC 150) the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The rules can operate only in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty shall be heard, even then, as laid down by the apex court in Menaka Gandhi v. Union of India (AIR 1978 SC 597) the justice of common law would supply the omission of the legislature and the principles of natural justice shall be read into the statute, so as to ensure a just decision. The rule of audi alteram partem is devised to ensure a just decision and is a healthy check on the abuse or misuse of power and the courts in this country have been very jealous to see that its reach and applicability is not allowed to be unnecessarily circumscribed. There cannot be indeed, any undue expansion of the principles of natural justice without reference to the administrative realities and other factor, but the fact, remains that it is "untenable heresy to lock-jaw the victim or act behind his back" by tempting invocations." 9.Having regard to the long line of decisions, I am of the firm view that in cases where the requirement of hearing between the contending parties, having competing interests is dispensed with expressly or by necessary implication the principles of natural justice demand that the authorities, exercising judicial or quasi-judicial function are required to give an opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior courts sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confined what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that." In the light of what is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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