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TMI Blog2006 (3) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... wood Industries (P) Ltd. (HPI) with effect from 1-9-85 and in terms of the scheme of amalgamation, all assets, rights and liabilities of the Himalayan Plywood Industries (P) Ltd. Stood transferred to Suadarsan Plywood Industries Ltd. with the renaming of the company as Kitply Industries Ltd. Which is the petitioner No. 1 in the present proceedings. 4. On or about 24-2-84 the officers of the Directorate of Revenue and Intelligence, along with officers of the respondents searched the business premises of the then HPI and SPI and the Directors and seized large number of documents in exercise of powers under the provisions of the Central Excise Act, 1944 and the Rules framed thereunder. 5. Pursuant to such search and seizure, the respondents issued show cause notices dated 9-10-85, 9-4-87 and 9-10-85 with which the present writ proceedings are concerned. According to the show cause notices, the petitioner has contravened the provisions of Rule 9(1), read with 173F, 173B, 173C, 173G(1) and (4) read with Rule 53 and Rule 226 of Central Excise Rules, 1944 attracting the proviso of sub-section (1) of Section 11A as regards recovery of duties short levied and short paid. According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reply thereto, the petitioner by their Annexure-6 letter dated 28-6-97 took the stand that in absence of the required documents, they were handicapped from submitting their effective and proper reply in defence. The respondents by their communication, dated 2-12-97 once again requested the petitioner to submit their show cause reply. It was intimated that upon failure of the petitioner to do so, decision would be taken ex parte. In response to this communication, the petitioner by their Annexure-8 letter dated 12-12-97 once again reiterated their stand of purported non-receipt of the documents and requested for supply of those documents. In the meantime, they also approached this Court once again by filing a writ petition being Civil Rule No. 5976/197 and the same was disposed by order dated 19-12-97, of with the following orders : "Within a period of 10 days from the date of receipt of the order, the Department shall do the needful to furnish the photocopies of the documents as asked for vide Annexures-4, 5 and 6, if not already given and within 10 days thereafter the show cause reply shall be filed. For this period, the authority shall not proceed ex-parte with regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 1944. The penalty has been imposed in terms of the provisions of Rule 173(q) of Central Excise Rules, 1944. 13. While forwarding the aforesaid impugned orders by letters, dated 31-10-2001, it was intimated that the petitioner would be entitled to prefer appeals against the orders before the East Regional Branch of the Appellate Tribunal located at Kolkata. The requirements for preferring the appeals were also indicated in the letters. 14. On receipt of the impugned orders, the petitioner filed the instant writ petitions on 12-12-2001 and this Court, while issuing notices by orders dated 14-12-2001, kept open the question as to whether the writ petition should at all be entertained when a statutory remedy of appeal is available to the petitioner. It is on the strength of the interim orders passed by this Court, the impugned orders have not been implemented till date. 15. The only ground urged in the writ petitions is that the petitioner in all the three cases having not been supplied with copies of the 34 documents indicated in Annexures-1 and 2 letters dated 24-3-87 and 8-5-87, the petitioner could not submit their show cause replies, which resulted in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The petitioner through its representative made Xerox copies of the documents seized by installing their own Xerox machine and the task of xeroxing the documents had begun in June, 1986. On the plea of developing mechanical defects in the Xerox machine, the petitioner requested for further time and the same was granted. Once again in July, 1986, a further request for allowing more time was made on ground of the operator having fallen sick and there being power shortage. In September, 1986 also the petitioner made request for further time on grounds of continuous rain in Calcutta and Durga Puja festival. Such prayers made, were granted. 19. The petitioner made further request for granting more time permitting them to make the Xeroxing of the documents at the end of February, 1987 on the plea that the climatic condition of Shillong is not suitable in December and January. In the meantime, the respondents by their letter dated 3-12-86 asked the petitioner to examine the records immediately and filed their reply within 10 days. The petitioner did not comply with the same and informed the respondents by their telegram, dated 12-2-87 that the person concerned had fallen sick. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Rule No. 5976/1997 and the same was disposed of by the above quoted order dated 19-12-97. As per the requirement of the said order, the petitioner was to be supplied with the photocopies of the documents, if not already supplied, and within 10 days thereafter the petitioner was to furnish the replies. The petitioner made the aforesaid representations dated 19-12-97 and 24-2-98 asking for the documents and thereafter maintained silence in the matter till the personal hearing was given to them on 14-3-2001 in which proceeding their submission to finalise the proceedings without keeping the same pending any longer was also recorded. 23. Amidst the aforesaid developments, the show cause notices issued during 1985-87 and the impugned orders dated 31-10-2001 have not attained its finality till date. At the first instance, the petitioners unsuccessfully contended that the show cause notices were without any jurisdiction and now has called in question, the impugned orders dated 31-10-2001 confirming the demand made to the petitioner. In between, they also initiated the writ proceeding against purported non-supply of documents. Thus, the proceedings initiated during 1985-87 by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the office premises of the respondents only to get the copies of the documents, it does not lie on their mouth to say that they were not supplied with the documents. 26. Mr. Sarma, learned CGSC, apart from the aforesaid submissions also seriously argued and raised the question of very maintainability of the writ petitions in view of there being alternative remedy by way of an appeal against the impugned orders. Referring to the earlier decision in the writ appeals, he submitted that after the matter attained its finality by way of dismissal of the writ petitions; it was incumbent on the part of the petitioner to respond to the show cause notices instead of dillydallying with the matter. He also placed reliance on the two decisions, which are (2003) 2 SCC 107 (Harbanslal Sangia v. Indian Oil Corporation Ltd.) and (2005) 7 SCC 764 [Ajit Kumar Nag v. G.M. (PJ) Indian Oil Corporation Ltd.]. 27. As noticed above, the writ petitions were entertained, keeping the question of maintainability open, in view of the alternative remedy available to the petitioner. Thus, the rule that even if an alternative remedy is available to a party, but once the writ petition is admitted and pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in the counter affidavit, they were given enough opportunities even to the extent of installing their own Xerox machine in the office premises of the respondents enabling them to get copies of the same which necessarily included the opportunity to examine the records. 30. The above revelations give an impression that the petitioner all along wanted to delay the proceeding on this or that pretext and they are successful also inasmuch as the show cause notices issued during 1985-87 have not attained its finality, because of the writ proceedings initiated by the petitioner way back in 1987. Thus, on the basis of the materials on record, I am of the considered opinion that the petitioner cannot take the plea of non-supply of documents by initiating further proceedings after conclusion of the first proceeding referred to above. In this connection, the relevant note, dated 16-11-90 of the Additional Collector, by which representative of the petitioner was authorized to bring their own Xerox machine and to take photocopies of the documents is quoted below : "Customs Central Excise: Shillong ***. Dated 16-11-90 Shri S.K. Dheer of M/s. Kitply Industries Limited requested for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply on 25-9-88; that the petitioner took photocopies/Xerox copies of the documents from 4-12-90 to 7-12-90 and again from 20-2-91 to 22-2-91; that they were asked to file reply within October, 1991 and again by 7-2-92 and once again by 6-6-97 have not been denied by the petitioner. 33. The petitioner have also not denied the specific averment made in the counter affidavit that the representatives of the petitioners on a number of occasions visited the office of the respondents and made inspection of all the seized documents and obtained copies thereof. The respondents in their counter affidavit have also specifically stated that all the relied upon documents were made available to the petitioner and they were allowed to operate their Xerox machine and take copies as per their own convenience. The respondents have also stated that if the petitioner lost the particular documents, the respondents are in no way responsible for the same. It is significant to note the specific plea of the respondents that the petitioner at the time of taking copies of the documents never lodged any complaint of non-production of relied upon documents. There is no denial of the same on the part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an act is challenged. 37. In the instant case, learned Counsel for the petitioner emphasized on the principle No. (ii). Apart from the fact that to attract this principle in the given fact situation of the present case, the petitioner will have to show that prejudice was caused due to non-supply of the particular documents, it has been held above that the petitioner and for that matter their representatives were given enough opportunity to examine the records and to take Xerox copy of the documents as per their desire. Furnishing of documents also includes examination of records and taking extracts of the same if the records are voluminous. The petitioner by installing their own Xerox machine took the copies of the documents and at no point of time raised any objection regarding non-availability of any document. It was only after their unsuccessful first round of litigation, they came up with the plea before this Court. However, in the process they have conveniently ignored the stand of the respondents in their counter affidavit. Thus, I am of the considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the principles of natural justice and consequently the respondents could not have passed the impugned order ex parte. Suffice is to say that when there is no quarrel with the proposition of law laid down in the said cases, in view of the findings recorded above, the said cases are of no assistance to the case of the petitioner. 41. In the case of Ajit Kumar Nag (supra), on which the learned Counsel for the respondents placed reliance, the Apex Court dealing with the rule of audi alteram partem, observed thus: "44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing is better and should always be preferred to from Laws of Med, Laws of God also observed the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before gibing an opportunity to show cause as to why they had eaten the forbidden threat. (See R.V. Univ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Rajureshwar Associates v. State of Maharashtra reported in (2004) 6 SCC 362. The Apex Court observed that the proceedings under Article 226 are not a substitute for an appeal. 44. In the instant case in spite of receipt of the show cause notices and understanding the same so as to question the very jurisdiction towards issuance of the same, the petitioner has raised the issue relating to violation the principles of natural justice. The issue has been discussed in detail above. In the case of Bar Council of India v. High Court of Kerala, the Apex Court observed : "24. The principles of natural justice, it is well settled, cannot be put into a straight-jacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lai Gupta v. Asha Devi Gupta of which two of us (V.N. Khare, C.J. and Sinha, J) are parties wherein upon noticing a large number of decisions it was held: 29. The princip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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