TaxTMI 
TaxTMI 
2015 (12) TMI 235
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....nsel for the Excise Department. The present writ petition has been filed for the quashing of the order in original dated 28.08.2015 passed by the Commissioner, Customs, Central Excise & Service Tax, 117/7, Sarvodaya Nagar, Kanpur. Normally the Court does not entertain the petition where an altenative remedy is available. A preliminary objection was raised at the time when the writ petition was filed but considering the facts and circumstances of the case, the Court entertained the writ petition and, by an order dated 29.9.2015 directed the Commissioner to appear before the Court and file a personal affidavit intimating the Court as to whether any notice or opportunity of hearing was provided to the petitioners pursuant to the order of the ....
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....ribunal, no further proceedings were initiated by the Commissioner and an exparte order dated 28.8.2015 was passed by the Commissioner imposing fresh duties and penalties. The petitioner filed the present writ petition contending that the order in original was passed ex parte without issuing notice and without giving an opportunity of hearing. Specific allegations were made in para 6, 18 and 19 of the writ petition. The learned counsel for the petitioners pointed out paragraph no.107 of the impugned order in which it was indicated that an opporutnity was given to the petitioners at the time when the first order in original was passed and therefore, no fresh notice was required to be given. In para 109 of the impugned order, it was stated t....
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.... concerned the party was under an obligation to raise the same before the adjudicating authority but since teh same was not done for a considerable period of time i.e. Almost two and a half years, therefore the deponent on a conclusion that the party had nothing to put forward in their defence, hence proceeded with the ajudication without service of any notice, since it was incumbent upon the party to have approached the adjudicating authority for decision afresh in their matter which was not done so by them." On the basis of the affidavits filed before the Court, it has come on record that a sanction order dated 3.5.2013 was passed by the Director General to launch criminal proceedings against the petitioners. The learned counsel submitt....
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....er, the Commissioner still went ahead to launch prosecution against the petitioner. It was further urged that after the complaint was filed on 24.2.2014, the petitioners filed an application for discharge and on the date fixed for consideration of the said application, the impugned order in original dated 28.8.2015 was filed in the court concerned without even serving the same upon the petitioner. It was urged that this was done deliberately in order to scuttle the proceedings before the Criminal Court. On this basis, the leaned counsel contends that the speed and the manner in which the Commissioner moved to save the prosecution proceedings by passing the impugned order speaks volumes by itself coupled with the fact that the said order was....
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....eaning no opportunity of hearing was granted to the petitioner. The tribunal directed the Commisioner to provide opportunity of cross examination of the witnesses, which has been denied by the Commissioner in paragraph no.107 of the impugned order. The justification given by the officer in paragraph no.3 of her affidavit is that the petitioners were under an obligation to appear before the authority concerned pursuant to the order of the tribunal and that it was incumbent upon the petitioner to approach the adjudicating authority for a decision afresh. This, by itself, indicates the mind set of the officer of lack of knowledge on the aspect of principles of natural justice as envisaged under Article 14 of the Constitution fo India. Adjudica....
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...., 2010 (2) SCC772: (2010)1 SCC(L & S) 675: AIR 2010 SC 3131. 25. In Lakshman Exports Ltd. V. CCE, (2005)10 SCC 634, this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e.permission with respect to the cross-examination of a witness. In this said case, the assessee had specifically asked to be allowed to cross-examine the representative of the firms concerened, to establish that the goods in question had been accounted for in their books of accounts, and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amunt to a denial of the right to be heard i.e. Audi alteram patern." Without adverting to ass....