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Judgment
Honourable Mr. Justice R. Sudhakar
This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records connected with Order-in-stay Petition No.
31/2012 (M-II) in A. No. 12/2010 (M-IV) dated 6.11.2012 passed by the respondent and to quash the same as not sustainable in law and to
consequently direct the respondent to hear the Appeal of the petitioner on merits by affording a reasonable opportunity of hearing to them.
Petitioner suffered by an order of the Assistant Commissioner of Central Excise, Chennai-4, for recovery of a sum of Rs. 14,38,174/- being the
differential duty payable on account of finalization of provisional assessment for the year 2008-09 in terms of section 11A of the Central Excise
Act together with interest. Aggrieved by the said order, petitioner filed an appeal to the respondent in Appeal No. 12/2010(M-IV) together with
stay petition No. 31/2012(M-II). The hearing of the appeal was fixed on 6.11.2012. On that date, petitioner sent a request through the advocate
for adjournment in respect of the following 3 cases:-
In the request letter petitioner states that there is a case going on before this High Court and therefore, sought for adjournment to any other date
convenient to the Commissioner.
It is not in dispute that in respect of M/s. GEA Cooling Technologies, on the date of hearing 5.11.2012, the Commissioner (Appeals) passed an
order ex parte in the stay application and the receipt of this letter has been recorded in that order. In the present case, the petitioner''s counsel was
very much before this court on 6.11.2012 and that is recorded in the adjournment letter dated 6.11.2012. The factum of receipt of the letter and
the request through facsimile is not in dispute. However, without considering the said request, the authority has proceeded to pass the interim order
in the stay petition. Therefore, prejudice and hardship is caused to the petitioner stating that the non hearing of the petitioner at the time of stay
petition is in violation of principles of natural justice and the petitioner was not able to put forward his prima facie case. If an opportunity had been
granted the authority would have considered the petitioner''s claim on merits.
Heard Thiru P. Mahadevan, learned counsel for the respondent, who in the light of the earlier order passed in W.P. No. 31229 of 2012 dated
22.11.2012 (GEA Cooling Tower Technologies (India) Private Ltd., 443, Guna Complex, Anna Salai Teynampet, Chennai 600 018 represented
by its General Manager (Finance) M. Nagakumar Vs. - The Commissioner of Central Excise (Appeals) 26/1, Mahatma Gandhi Road Chennai
600 034) contended that if the court is inclined to set aside the impugned order only on the ground that there is no proper hearing given to the
petitioner, the petitioner may be directed to appear before the respondent on the next hearing date without fail and co-operate with the disposal of
the stay petition.
I have considered the similar issue at length in W.P. No. 31229 of 2012 and remitted the matter back to the Commissioner of Central Excise
(Appeals) for reconsideration only on the ground that proper opportunity has not been granted. The relevant portion of the order passed in
W.P.N. 31229 of 2012 reads as follows:-
The writ petition deserves to be allowed and the impugned order is liable to be set aside on the short ground that the request for grant of
personal hearing was sought for and denied by the authority in spite of the fact that the petitioner had clearly stated that they are attending the High
Court in another matter and sought for adjournment. The fact that they sought for adjournment expressing inability to attend the case in view of the
matter before the High Court is recorded in the impugned order in paragraph (5), which reads as under:
A Personal Hearing was scheduled on 5.11.2012. No one appeared for the personal hearing and they have expressed their inability to attend
due to other cases in the Hon''ble High Court and hence could not keep up the timings. Hence, I am constrained to take up the stay petition for
decision, based on the material on record. It is a settled issue that the adjournment to any case could be considered only if the appellant shows a
sufficient cause and requests for the same. In the instant case, there was no such request. Hence, there was no case to consider any adjournment.
The authority however proceeded to dispose of the stay petition by ordering pre-deposit of 50% of the CENVAT Credit on or before
1.12.2012 and has fixed the personal hearing on 3.12.2012 in respect of the main appeal.
It is, therefore, apparent that the Commissioner (Appeals) has proceeded to disregard the request of the petitioner for personal hearing despite
the fact that the counsel has clearly sought time in view of the inability to appear on that particular date for this case on the ground that they are
engaged before this Court. The petitioner also states that they have given intimation seeking adjournment on the above stated plea. There is nothing
on record to show that the petitioner has been seeking adjournments frequently to avoid hearing. Unless and until it is shown that the conduct of the
party is to avoid appearance without just or reasonable cause, there is no justification to decline grant of further time. On this score, the order
passed in the stay petition without giving an opportunity of hearing to the petitioner appears to be arbitrary and there has been a violation of the
principles of natural justice.
That apart, paragraph (5) of the impugned order, extracted above, is self-contradictory. In the first portion, the authority accepts that there is a
request for adjournment, but in the later portion of the same paragraph, it is disregarded stating that there was no such request.
If the appeal is to be disposed of on such a short date, namely on 3.12.2012, the authority could have taken up the appeal itself on 3.12.2012
instead of ordering pre-deposit. Therefore, in this case, such a direction to pre-deposit 50% of the CENVAT Credit for the purpose of hearing the
appeal is totally un-called for.
Mr. Vikram Ramakrishnan, learned counsel for the respondent states that if the Court is inclined to set aside the order as above, the petitioner
may be directed to appear on the next hearing date without fail and the authority will hear and pass orders on the stay petition thereafter. The said
statement is recorded.
In view of the above, the impugned order is set aside and the matter is remanded to the respondent to decide the stay petition or take up the
appeal without pre-deposit, as the case may be, on an appropriate date to be fixed by the authority at its convenience.
The writ petition is allowed by way of remand. No costs. Consequently, M.P. No. 1 of 2012 is closed.
The present case is similar to the one which has already been disposed of as above. The impugned order is passed without giving adequate
opportunity to the petitioner. Therefore, the impugned order is set aside and the matter is remitted back to the respondent for reconsideration by
giving the petitioner an opportunity and pass appropriate order after hearing the petitioner. The Writ Petition is allowed by way of remand. No
costs Consequently, connected miscellaneous petition is closed.