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2005 DIGILAW 238 (GUJ)

POOJA TEX PRINTS LTD v. UNION OF INDIA

2005-03-30

D.A.MEHTA, H.N.DEVANI

body2005
D. A. MEHTA, J. ( 1 ) THE petitioner, a Limited Company has challenged order dated 21st February,2005 made by the Customs, Excise And Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (CESTAT ). Heard Mr. Mitul K. Shelat, learned Advocate appearing with Mr. Mihir Joshi, learned Senior Advocate on behalf of the petitioners and Mr. Jitendra Malkan appearing on an advance copy on behalf of the respondents. In light of the controversy and the view that the Court is inclined to take the matter is taken up for hearing and final disposal today. ( 2 ) RULE. Mr. Jitendra Malkan appears and waives service on behalf of the respondents. ( 3 ) THE petitioners had moved two applications seeking stay of demand of duty as well as penalty on the petitioner company and its Director. When the matter came up for hearing before CESTAT on 21st February,2005 it was submitted on behalf of the petitioners that the Counsel engaged by the petitioners was suffering from Viral fever from Saturday night i. e. 19th February,2005 and, hence, a prayer was made for adjourning the matter. The said prayer was opposed by the Jr. D. R. appearing for the revenue on the ground that the stay applications had been filed in July,2004 and had been listed for hearing after seven months. A prayer was also made by the Jr. D. R. that as the stakes involved are very heavy it would not be in the interest of the revenue to grant adjournment without putting the petitioner to some condition of predeposit. CESTAT accepted the submission made on behalf of the revenue and directed the petitioners to deposit a sum of Rs. 10 crores towards duty demand by 31st March,2005 and report compliance on 4th April,2005. ( 4 ) THE learned Counsel for the petitioners has reiterated the submissions made before CESTAT while Mr. Malkan has also emphasized the fact that considering the total demand of duty and the penalty the petitioners must be put to some terms and conditions, even if, prima facie the Court was of the opinion that the matter was required to be restored to file of the Tribunal for giving an opportunity of hearing. ( 5 ) THE facts are not in dispute. ( 5 ) THE facts are not in dispute. The application seeking stay of demand came up for hearing after about seven months from the date of filing and 21st February,2005 was the first date when the matter was fixed. It is no bodys case that between the point of time when the stay applications were filed and were taken up for hearing by CESTAT the matters had been adjourned at the instance of either side. As can be seen from the impugned order itself the only grievance made by the Jr. D. R. is that the matter had come up for hearing after about seven months and in the circumstances, the request for adjournment should not be granted. The delay in listing of the matter appears to be only due to administrative exigencies faced by the Tribunal considering the work-load and pendency of appeals and applications before it. In these circumstances, for no fault of the petitioners, the petitioners can not be penalised. It is not also anybodys case that the ground on which the adjournment was sought viz. illness of the Counsel was not correct. ( 6 ) THOUGH the proceedings before CESTAT are not akin to proceedings in a Civil Suit CESTAT has all the trappings of a Court. CESTAT may not be fettered by technical rules of evidence, but nonetheless it is required to follow principles of natural justice. At least the principle of AUDI ALTERAM PARTEM must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. An opportunity of hearing has to be not only reasonable but proper and effective. Otherwise it is would amount to denial of opportunity of hearing. In other words denial of justice. ( 7 ) IN these circumstances, in light of clear violation of principles of natural justice it is necessary that the impugned order of the Tribunal be quashed and set aside directing parties to make their submissions on merits before the Tribunal. The order dated 21st February,2005 (Annexure P/9) is hereby quashed and set aside and the stay applications bearing Nos. E/s/1857 and 1858/04-Mum in Appeal Nos. E/2322 and 2323/04-Mum are hereby restored to the file of CESTAT. ( 8 ) CESTAT shall fix up a convenient date of hearing within a period of four weeks from the date viz. The order dated 21st February,2005 (Annexure P/9) is hereby quashed and set aside and the stay applications bearing Nos. E/s/1857 and 1858/04-Mum in Appeal Nos. E/2322 and 2323/04-Mum are hereby restored to the file of CESTAT. ( 8 ) CESTAT shall fix up a convenient date of hearing within a period of four weeks from the date viz. 11th April,2005, when both the sides shall appear before CESTAT for fixing the date of hearing. The learned Advocate for the petitioners has assured the Court that they shall not seek adjournment and in case of any difficulty shall make alternative arrangement when the matter is fixed before the Tribunal. ( 9 ) IN the circumstances, the stay applications in the first instance shall be fixed for hearing by CESTAT. The petition is allowed accordingly to the aforesaid extent. Rule made absolute. There shall be no order as to costs. .