Khaitan Chemicals and Fertilizers Ltd. vs Union of India

Rule, made returnable forthwith. Counsel appearing on behalf of the respondents waives service. With the consent of counsel and at their request, the petition is taken up for hearing and final disposal. By an order dated 1 August, 2011 a Division Bench of this Court, while disposing of an earlier writ petition filed by the petitioner (Writ Petition 6013 of 2011) directed the Deputy Commissioner of Customs to pass fresh orders finalising assessments after furnishing to the petitioner an opportunity of being heard. The petitioner was directed to remain present on 19 October, 2011 and thereafter on two alternate days viz. 15 or 22 November, 2011. On 16 November, 2011 the petitioner filed written submissions on the merits of the proposed assessments but also drew attention to the fact that on 15 November, 2011 when the authorised representative on their behalf visited the office of the Assistant Commissioner of Customs (Preventive), he was out of office for a meeting. The petitioner sought a further opportunity of a personal hearing. The impugned order of assessment has been passed on 17 January, 2012. After receipt of the Petitioner''s letter dated 16 November, 2011, no further hearing was held. The order of assessment has therefore been passed without affording to the petitioner an opportunity of being heard and without hearing the petitioner.

In view of this factual position, during the course of the hearing we had requested counsel appearing on behalf of the Respondents to take instructions as to whether the Assistant Commissioner of Customs (P) would give to the petitioner a fresh hearing and pass an order of assessment thereafter in accordance with law. Counsel appearing on behalf of the respondents after seeking instructions states that the Assistant Commissioner of Customs (P) would furnish a hearing to the petitioner on 19, 20 or, as the case may be, 23 April, 2012 at 12 noon and it would be open to the petitioner to appear before him on any one of the aforesaid dates for a personal hearing. Accordingly it has been agreed that no further notice of hearing would be given to the petitioner. Though we are conscious of the fact that the impugned order of assessment is subject to an appeal, we have exercised the writ jurisdiction under Article 226 of the Constitution, having regard to the well settled position that where an order has been passed in breach of the principles of natural justice, it would be open for the writ Court to interfere. Hence, without expression of any opinion on the merits of the rival contentions, we set aside the impugned order of assessment dated 17 January, 2012 passed by the Assistant Commissioner of Customs (P), Alibaug Division. In terms of the statement made before the Court, the adjudicating authority shall pass fresh orders after furnishing to the petitioner an opportunity of being heard. It has been agreed that the petitioner would be at liberty to appear before the adjudicating authority on one of the three dates indicated above viz. 19, 20 or 23 April, 2012 at 12 noon for that purpose. No further notice of hearing is required to be communicated to the petitioner. The petition is accordingly disposed of in these terms. There shall be no order as to costs.