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TMI Blog2005 (10) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... t of principles of natural justice. Thus affected person must be given fair opportunity not only to answer the case against him but to adduce positive evidence in support of his own case together with right to contradict all adverse allegations, if necessary, by permitting him to cross-examine the witnesses of the opponent. It is needless to mention that although the principles of natural justice are aimed at ensuring a fair hearing, nevertheless, depending on all the circumstances of the case, a decision reached or hearing conducted in breach of the principles of natural justice is reviewable in an action of judicial review. In our view, the above principle would apply even where the petitioner has been denied opportunity to have the contents of the test reports relied upon by the respondents before the adjudicating authority. In our view, the adjudicating authority was, obviously, in error in not directing the respondents to supply copies of the test reports to the petitioners. A document to be relevant may support either the Revenue or the petitioner. No adjudicating authority can, therefore, refuse production of such a document simply because that document which is to be used a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... costs. - HON'BLE J.P. DEVADHAR AND V.C. DAGA, JJ. For the Appellant : A. Hidayatullah, Senior counsel i/b.,z Basil Menezes, Adv. For the Respondent : B.A. Desai, Addl. Solicitor General and Anurag Gokhale, Advs. Judgment V.C. Daga, J. 1. This petition filed under Article 226 of the Constitution of India arises out of dispute between the petitioners and the Central Excise Department (respondents herein), which centres around the question: whether the product of the petitioners, viz. CHOCOS is classifiable under Chapter sub-heading No. 1904.10 or Chapter sub-heading No. 1804.00 of the Tariff Act? Factual Background : 2. Filtering out unnecessary details, the factual background relevant to the present dispute is as follows : 3. The petitioner No. 1 - M/s. Kelloggs India Private Limited is engaged, inter alia; in manufacture of excisable goods falling under the Central Excise Tariff Act, 1985 ( Tariff Act for short). 4. It appears that the samples of the product of the petitioners known as 'CHOCOS were analysed by the Deputy Chief Chemist, Central Excise, Mumbai; whose test reports dated 10th March, 1996 and 19th March, 1996 revealed amongst others that the content of 'c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The relevant paragraphs of the remand order of the Tribunal read as under : 5. Where the classification of a commodity depends upon its corresponding to a specified chemical composition, the manufacturer is entitled to be told the methodology of analysis by which the department concludes that the product conforms to the composition on the basis of which classification is proposed. We agree that the reply to the show cause notice does not specifically say this, but the intention in that reply, referring to cross objection and cross verification of the test report and the repeated insistence upon the copy of the test report, make clear the manufacture's desire to be informed the methodology of the test and parameters adopted by the department to come to the conclusion that the product contain a particular percentage of coca. In any event, a specific request was made to the Commissioner (Appeals) for cross-examination of the Deputy Chief Chemist. In fact that CFTR, the premier food research institution of the Government suggests that it was unable to directly determine the cocoa content emphasizes the need that the appellant was asking for this information. 6. We are therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyance. This prayer of the petitioners also did not find favour with respondent No. 3, who proceeded to pass another order of adjudication dated 31st August, 2005 (Exh. A-1) and confirmed further demand against the petitioners. 14. The petitioners have amended their petition so as to challenge this second order dated 31st August, 2005 (Exh. A-l). Thus, two adjudication orders dated 22nd July, 2005 (Exh. A) and 31st August, 2005 (Exh. A-1) are the subject matter of challenge in this petition. Events Pending Petition: 15. This petition was posted for hearing before us on 21st September, 2005. Mr. Hidayatulla, learned senior counsel appearing for the petitioners during the course of hearing made a serious grievance for not supplying copies of the test reports and alleged breach of principles natural justice as well as that of the terms of remand order passed by the Tribunal. 16. Mr. B.A. Desai, learned Additional Solicitor General appearing for the respondents during the course of hearing, reluctantly, handed over the copies of the test reports. Mr. Hidayatulla, with the receipt of the copies of the test reports, sought time to go through the same; to find out whether or not that woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, rule. By consent of parties rule made returnable forthwith. 22. Mr. Hidayatullah submits that it was obligatory on the part of the respondents to supply the test reports as directed by the Tribunal while remanding the appeal. He submits that had there been no necessity to supply copies of the test reports as sought to be contended on second thought by the learned Additional Solicitor General, in that event, he would not have handed over the copies of the test reports to the petitioners. He further submits that unless learned Additional Solicitor General was of the view that the test reports were necessary for effective cross-examination, there was no necessity for him to supply the copies thereof. He, thus, submits that Mr. Desai, learned Additional Solicitor General has, virtually, conceded that denial to supply copies of test reports to the petitioners was clearly in breach of principles of natural justice. 23. Mr. Hidayatullah further urged that the rule of exclusion of writ jurisdiction, in view of availability of appellate remedy, is a rule of discretion and not one of compulsion. He submits that failure on the part of the respondents to follow principles of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges of the said book and pointed out therefrom that it prescribes four methods to find out cocoa content. He, thus, submits that supply of photo-stat copies of four pages of the said book containing different methods of analysis raised further question as to out of four methods which method was employed by the Deputy Chief Chemist to find out the cocoa content. That in absence of test reports it was not possible for the petitioners to find out actual methodology employed by the Deputy Chief Chemist, while carrying out test on the subject product of the petitioners. In that view of the matter, Mr. Hidayatullah submits that supply of test reports was very much necessary for effective cross-examination of Deputy Chief Chemist. 27. Mr. Hidayatullah while criticising the approach adopted by the respondents submitted that the attempt of the respondents to play a game of hide and seek and to deny the petitioners' right to effectively cross-examine the witness has resulted in breach of principles of natural justice. He submits that no useful purpose would have been served by proceeding with the cross-examination of the Deputy Chief Chemist in the absence of material particulars with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule, exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion, rather than a rule of law. (see Babu Ram v. Zillah Parishad, AIR 1969 SC 556). 32. In Harbans Lal Sahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107, the Apex Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders of proceedings are wholly without jurisdiction or the vires of an Act is challenged. 33. The Constitution Bench of the Apex Court in K.S. Rashid v. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India v. T.R. Verma, AIR 1957 SC 882; State of U.P. v. Mohammad Nooh, AIR 1958 SC 86; and M/s. K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR 1966 SC 1089, held that Article 226 of the Constitution confers on all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally, the High Court should not interfere if there is an adequate efficacious alternative remedy. Consideration : 37. In view of the above settled position of law laid down and reiterated by the Apex Court from time to time, we first propose to deal with the plea regarding alternate remedy raised by the respondents/Revenue. 38. If somebody approaches this Court without availing the alternative remedy provided, this Court has to ensure that the petitioner has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 39. In order to appreciate the rival submissions, one has to turn to Paras 5 and 6 of the order passed by the Tribunal which is already quoted in Para 10 (supra). 40. After remand by the Tribunal, photo-stat copies of four pages of one book referred to above and methodology adopted for carrying out test were su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy is required to determine questions of law or fact in circumstances where its decisions will have a direct impact on the rights or legitimate expectations of the individuals concerned, an implied obligation to observe the principles of natural justice arises. One of the shades of the rules of natural justice is a right to fair hearing. The right to fair hearing required that an individual shall not be penalised by a decision affecting his rights or legitimate expectations; unless he has been given prior notice of the case against him and a fair opportunity to answer the same and to present his own view point. 44. Right to fair hearing involve prior notice of hearing; opportunity to be heard together with right to legal representation. Generally, when an oral hearing is conducted, the parties must be allowed to call witnesses, make submissions and cross-examine the witnesses called by others. Where an oral hearing is necessary, it has been laid down in number of reported judgments that the Tribunal must : (a) consider all relevant evidence which a party wishes to submit; (b) inform every party of all the evidence to be taken into account, whether derived from another party or inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person ignoring the essentials of justice, the order is a nullity. In A.K. Kraipak v. Union of India, AIR 1970 SC 150; (1969) 2 SCC 262 and several other cases the Apex Court has laid down that any order passed in violation of the principles of natural justice is ultra vires and void. 50. In the case of Brajlal v. Union of India, 1964 Mh. L.J. 500, the Apex Court was pleased to set aside the order of review passed by the Central Government. In that case the application for grant of renewal of a certificate of approval was dismissed by the State Government on the ground that the partners composing the firm had changed. The firm then applied to the Central Government for review of the State Government's order under Rule 57(2) of the Mineral Concession Rules. The Central Government asked for a report from the State Government and after taking it into consideration rejected the application for review. The contents of the State Government's report were not made known to the firm, nor was any reasonable opportunity given to the firm for presenting their case. It was contended before the Apex Court that the Central Government was acting as a quasi-judicial authority and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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