Shree Girnar Cement Co. (P) Ltd. vs Union of India

G.T. Nanavati, J.—The Petitioners have filed an appeal in the Customs, Excise & Gold (Control) Appellate Tribunal against the order passed by the Collector of Customs and Central Excise, Rajkot on 26-5-1988. The petitioners also applied for stay of the operation of the said order passed by the Collector, pending their appeal. The Tribunal by its order dated 5-10-1988, rejected the petitioners request to exempt them from the requirement of depositing the duty and penalty amount determined by the Collector. The Tribunal merely exempted the petitioners from the requirement of depositing the penalty amount and directed them to deposit the amount of duty within six weeks from the date of communication of that order and report compliance with that order within seven weeks. It is this order which is challenged in petition.

What is urged by the learned counsel for the petitioners is that hearing of the stay application was fixed on 5-10-1988. The notice of hearing was received by the Petitioner Company at its factory at Junagadh in the last week of September 1988. Since the Bombay office of the petitioner company was looking after that case, Junagadh office wrote to Bombay office to make necessary arrangements for appearing before the Tribunal on 5-10-1988. However, the communication of Junagadh office reached Bombay office after the date of hearing and therefore nobody could remain present on behalf of the petitioners on 5-10-1988 before the Tribunal. When the officer-in-charge of the Bombay office inquired with the Registry of the Tribunal, he came to know that an order on stay application was already passed on 5-10-1988. It is petitioners'' case that looking to the various grievances of petitioners made in the appeal memo and the stay application, the stay application ought not to have been decided by the Tribunal without affording a personal hearing to the petitioners. It was also urged that the Tribunal had proceeded on the wrong footing that no request was made during the personal hearing for cross-examination of Deputy Chief Chemist and Chemical Examiner. He also submitted that the correspondence exchanged between the petitioners and the respondent Collector and the record of personal hearing clearly show that the petitioners had requested for cross-examination of the said two experts on various occasions and even at the time of personal hearing.

Without going into the question as to whether or not the petitioners were given a proper opportunity of hearing before the Collector, it can be said that the petitioners had repeatedly asked for cross-examination of the said two experts. Moreover, looking to the contentions raised by the petitioners and the State involved, it is not possible to believe that the petitioners remained absent on 5-10-1988 either because they did not think it necessary to appear, or because they were negligent. They appear to be right when they stated that because of the communication gap between the Junagadh office and Bombay office nobody could remain present at the time of hearing of the stay application. Under the circumstances, it would be just and proper if the order passed by the Tribunal on the stay application filed by the petitioners is set aside and the Tribunal is directed to re-hear the said application and pass a fresh order thereon.

In the result this petition is allowed. Order dated 5-10-1988, passed by the Tribunal is quashed and set aside and the Tribunal is directed to re-hear the application after informing the petitioners of the date of hearing of that application and pass a fresh order thereon. Till the said application is decided by the Tribunal, respondents No. 1 and 3 are directed not to resort to coercive method for the purpose of recovery of the amount found due to from and payable by the petitioners under the orders passed by the Collector.