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2017 DIGILAW 611 (GUJ)

Ramesh Vasantbhai Bhojani v. Union of India

2017-03-17

A.S.SUPEHIA, HARSHA DEVANI

body2017
JUDGMENT : Harsha Devani, J. 1. Since the facts and contentions raised in both these petitions are similar and the parties are common, they were taken up for hearing together and are decided by this common judgment. For the sake of convenience, reference is made to the facts as appearing in Special Civil Application No. 9198 of 2016. 2. The petitioner, during the period July 2009 to January 2010, carried out re-packing of Muriate of Potash (MOP) on behalf of the exporters, who allegedly exported the said MOP to Malaysia. In July 2010, the officers of the Directorate of Revenue Intelligence (DRI) initiated investigation in respect of the issue of export of MOP. Pursuant thereto, a show cause notice dated 05.06.2013 came to be issued to the petitioner. It is the case of the petitioner that thereafter, the office of the third respondent - Additional Commissioner of Customs (Preventive), Jamnagar, issued hearing notice dated 08.08.2014 fixing the date of hearing on 19.08.2014, which was sent/received at the permanent address of the petitioner's parents at Rajkot. The petitioner who has been permanently based in Surat since 2005, on receipt of the notice from his parents, forwarded the same to his Ahmedabad based advocate. The learned advocate, due to short notice, could not act/represent in the matter before the adjudicating authority. Thereafter, another notice of hearing dated 15.09.2014 was once again served at the petitioner's parents' address at Rajkot on or about 22.09.2014, fixing the personal hearing on 25.09.2014. Once again, due to the short notice period of fixing the hearing dates, it was difficult for the petitioner to obtain the availability of the petitioner's advocate to appear before the third respondent, whose office is located at Jamnagar. The petitioner's advocate, however, vide letter dated 25.09.2014, filed a reply raising preliminary objections and requested for another date of hearing to submit the reply and attend the personal hearing. Thereafter, the petitioner filed final reply dated 07.10.2014, inter alia, requesting for personal hearing in the matter. It is the case of the petitioner that without granting opportunity of personal hearing in the matter and without properly considering or giving his findings on the written submissions made by the petitioner, the third respondent vide order-in-original dated 20.10.2014 imposed penalty of Rs. 3,00,000/- on the petitioner under section 114(i) of the Customs Act, 1962 (hereinafter referred to as "the Act"). 3,00,000/- on the petitioner under section 114(i) of the Customs Act, 1962 (hereinafter referred to as "the Act"). Being aggrieved, the petitioner preferred an appeal before the second respondent (Commissioner (Appeals)), along with an application for condonation of delay. Vide order-in-appeal dated 14.10.2015, the appeal came to be rejected on the ground of delay in filing the appeal beyond the condonable delay of thirty days provided under the proviso to section 128 of the Act. Being aggrieved, the petitioner has filed the present petitions challenging, both, the order-in-original dated 20.10.2014 as well as the order-in-appeal dated 14.10.2015. 3. Mr. Rahul Gajera, learned advocate for the petitioner, made three fold submissions challenging the impugned order-in-original. Firstly, that the order-in-original is bad in law on account of breach of the principles of natural justice, inasmuch as, the proviso to section 122A of the Act requires that three adjournments be granted to a party, whereas in the present case, after granting two adjournments, despite the fact that an opportunity of personal hearing was requested for, without considering such request and granting such opportunity, the order-in-original came to be made. According to the learned advocate for the petitioner, section 122A of the Act requires giving personal hearing after due adjudication process, that is, after filing of reply. That the petitioner having filed preliminary reply on 25.09.2014 and final reply on -7.10.2014, the third respondent was statutorily under an obligation to give an opportunity of hearing before passing the impugned order. In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Automotive Tyre Manufacturers Association v. Designated Authority, 2011 (263) ELT 481 (SC), the decision of this court in the case of Meghmani Organics Limited v. Union of India, 2012 (281) ELT 528 (Guj.), as well as the decision of the Bombay High Court in the case of Khandelwal Laboratories Ltd. v. Union of India rendered on 8th October, 2008 in Writ Petition No. 6134 of 2008. It is also the case of the petitioner that the notices for personal hearing were sent to the address of the petitioner's parents and were, therefore, received very late, leaving him with very little time to obtain availability of his advocate to appear before the third respondent on the date of personal hearing, as the office of the third respondent is situated at Jamnagar. It was submitted that the short notices which were issued to the petitioner are also in breach of the principles of natural justice. 3.1 The second limb of the submissions advanced by the learned advocate for the petitioner was that the petitioner had submitted written reply to the show cause notice, however, no findings have been given on the written submissions as to why such contentions did not find favour with the authority. Therefore, the impugned order-in-original is a non-speaking order and stands vitiated on that count also. In support of such submission, the learned advocate placed reliance upon the decision of a Division Bench of this court in the case of Anil Products Limited v. Commissioner of Central Excise, Ahmedabad-II, 2010 (257) ELT 523 (Guj.), for the proposition that mere reproduction of submissions in the body of the order is not enough and that the finding of the deciding authority on these submissions is equally necessary. That in absence thereof, such order would be deemed to be a non-speaking order. 3.2 The third limb of the argument of the learned advocate for the petitioner was that in respect of the same cause of action, that is, for the same period, essentially on the same evidence, a show cause notice dated 24.01.2011 had been issued by the second respondent, which culminated into an order-in-original dated 30.03.2012, whereby penalty of Rs. 75,00,000/- came to be imposed on the petitioner, against which an appeal is pending before the Tribunal. It has been contended on behalf of the petitioner that repeated show cause notices in respect of the same period and on the same allegation based on the same material are not sustainable in law. 3.3 As regards the order dated 14.10.2015 passed by the second respondent, whereby the application for condonation of delay made by the petitioner has been rejected, it was submitted that the Commissioner (Appeals) ought to have considered that there was sufficient cause on the part of the petitioner in filing the appeal after some delay, which stood clearly explained. It was submitted that the office of the Commissioner (Appeals) does not accept the memorandum of appeal unless the same is accompanied by a challan evidencing payment of pre-deposit. It was submitted that the office of the Commissioner (Appeals) does not accept the memorandum of appeal unless the same is accompanied by a challan evidencing payment of pre-deposit. It was submitted that it is on this count, that the petitioner could not file the appeal within the prescribed period of limitation as it took some time for him to arrange for the funds to make the pre-deposit. It was submitted that in any case, pre-deposit was made within the condonable period of thirty days and hence, the appeal ought to have been treated in time having regard to the fact that the pre-deposit was made within the period which the Appellate Commissioner was empowered to condone. It was, accordingly, urged that the petitions require consideration and that the impugned order-in-original is required to be quashed and set aside on the ground of breach of the principles of natural justice or in the alternative, the delay in filing the appeal before the Commissioner (Appeals) is required to be condoned and the appeal should be directed to be heard on merits. 4. Opposing the petitions, Mr. Chintan Dave, learned Senior Standing Counsel for the respondents, reiterated the contents of the affidavit-in-reply filed on behalf of the third respondent. It was submitted that sufficient opportunities of personal hearing were offered to the petitioner on various dates, viz., 09.05.2014, 19.08.2014, 10.09.2014 and 25.09.2014. It was submitted that the petitioner has also confirmed that he had received notice of personal hearing at his Rajkot address and that despite service of notice, the petitioner had not chosen to appear before the adjudicating authority for personal hearing either in person, or through any authorized representative. It was submitted that since there was no request for directing the notices of personal hearing to other address by the petitioner or for granting subsequent suitable date of hearing during the adjudication, such contention which is raised for the first time before this court, should not be considered. The attention of the court was invited to the findings recorded by the adjudicating authority, to submit that the adjudicating authority in the impugned order-in-original has considered the submissions made in the preliminary objections as well as in the written reply filed by the petitioner, and hence, the contention that such submissions have not been dealt with, is without any merit. 4.1 As regards the contention that in respect of the same cause of action, that is, for the same period, essentially on the same evidence, a show cause notice dated 24.01.2011 had been issued by the second respondent and that this is a second show cause notice on the same set of facts, the learned advocate invited the attention of the court to the averments made in paragraph-15 of the affidavit-in-reply, wherein it has been stated that the order-in-original dated 30.03.2012 pertains to illegal export of MOP covered under different shipping bills and hence, the same cannot be termed as same cause of action for the same period and on the same evidence. Referring to the table below paragraph-15 of the affidavit-in-reply, it was pointed out that the shipping bills in relation to both the show cause notices are different and hence, the contention that the show cause notices are for the same cause of action for the same period and on the same evidence, does not merit acceptance. 4.2 Insofar as the impugned order dated 14.10.2015 passed by the Commissioner (Appeals) is concerned, the attention of the court was invited to the provisions of section 128 of the Act, to point out that the same provides for filing an appeal within sixty days from the date of communication of the decision or order of the adjudicating authority and that the proviso thereto lays down that if the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. Thus, the statute empowers the Commissioner (Appeals) to condone a delay of thirty days beyond the sixty days prescribed for filing the appeal, and no more. It was submitted that by now it is well settled that beyond the period of thirty days, as provided in the proviso to section 128 of the Act, the Commissioner (Appeals) has got no power to condone the delay, under the circumstances, the impugned order dated 14.10.2015 rejecting the application for condonation of delay, is just, legal and proper, and does not warrant interference by this court. 4.3 The learned Senior Standing Counsel further submitted that against the impugned order-in-appeal, there is a remedy by way of an appeal under section 129A of the Act before the Appellate Tribunal, and hence, the present petitions are not maintainable and deserve to be dismissed on this ground alone. It was, accordingly, urged that both the petitions being devoid of merits, do not warrant interference. 5. In the backdrop of the facts and contentions noted hereinabove, the first question that arises for consideration is as to whether the order dated 14.10.2015 passed by the second respondent - Commissioner (Appeals) rejecting the application for condonation of delay suffers from any legal infirmity warranting interference. 6. A perusal of the impugned order dated 14.10.2015 shows that the Commissioner (Appeals) has taken into consideration the provisions of section 128 of the Customs Act and has observed that the appeals had been filed beyond the extended period of thirty days of actual date of filing of appeal inasmuch as, the appeals have been preferred as late as 116 days and 120 days, that is, there is a delay of almost four months' time. Without entering into the merits of the case, the Commissioner (Appeals) has held that he is left with no option but to reject the appeals for non-compliance of the provisions of section 128 of the Customs Act, 1962. 7. At this juncture, it may be germane to refer to the provisions of section 128 of the Act, which provides for appeal to Commissioner (Appeals) and reads thus: "128 Appeals to Commissioner (Appeals).-- (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 8. On a plain reading of the provisions of section 128 of the Act, it is apparent that the same mandates that an appeal should be filed within sixty days from the date of communication of the decision or order that is sought to be challenged. However, in view of the proviso thereto, the Commissioner (Appeals) is empowered to allow the appeal to be presented within a further period of thirty days if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of sixty days. Thus, the Commissioner (Appeals) is empowered to extend the period for filing an appeal for a further period of thirty days and no more. Therefore, once there is a delay of more than ninety days in filing the appeal, the Commissioner (Appeals) has no power or authority to permit the appeal to be presented beyond such period. The controversy sought to be raised by the petitioner is no longer res integra, inasmuch as the same stands decided by the Supreme Court in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70 , wherein the court in the context of section 35 of the Central Excise Act, 1944, which is in pari materia with section 128 of the Act, has held thus: "8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period." 9. The above view was reiterated by the Supreme Court in Amchong Tea Estate v. Union of India, (2010) 15 SCC 139 and Commissioner of Customs and Central Excise v. Hongo India Private Limited, (2009) 5 SCC 791 . In the light of the above settled legal position, it cannot be said that the impugned order passed by the Commissioner (Appeals) suffers from any legal infirmity warranting interference. 10. At this stage, it would, however, be necessary to notice certain facts. In the light of the above settled legal position, it cannot be said that the impugned order passed by the Commissioner (Appeals) suffers from any legal infirmity warranting interference. 10. At this stage, it would, however, be necessary to notice certain facts. In the application for condonation of delay moved by the petitioner, it has been stated that the petitioner upon receipt of the order-in-original dated 10.10.2014 on or about 7th November, 2014 and the order-in-original dated 20.10.2014 on or about 11th November, 2014, forwarded the same to the Ahmedabad based advocate's office, who advised him to first deposit 7.5% of the penalty amount imposed on the petitioner as a mandatory pre-deposit to prefer appeal before the concerned appellate authority. That the petitioner is a small trader and was facing weak financial condition and hence, could comply with pre-deposit of 7.5% of penalty amount only in respect of the order-in-original dated 10.10.2014 on 6th January, 2015 and due to continued weak financial condition could manage to pre-deposit 7.5% in respect of order-in-original dated 20.10.2014 only on 6th February, 2015 whereafter, copy of the challan was forwarded to the advocate's office for filing the appeal. Thus, from the facts stated in the application, it is apparent that more or less a period of ninety days' was consumed in arranging for making pre-deposit of 7.5% of penalty amount. On a query by the court as to why the petitioner had to wait for arranging for the pre-deposit amount, it was submitted that unless a challan evidencing payment of pre-deposit is submitted along with the appeal memo, the appeal memos are not accepted by the respondent authority and hence, it is not possible to file an appeal unless the amount payable by way of pre-deposit is paid. 11. In this regard, reference may be made to the provisions of section 129E of the Act, which read thus: "129E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. 11. In this regard, reference may be made to the provisions of section 129E of the Act, which read thus: "129E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal, - (i) under sub-section (1) of section 128, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Commissioner of Customs; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 129A, unless the appellant has deposited seven and a half per cent of duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 129A, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014." 12. On a plain reading of section 129E of the Act, it is clear that what the same envisages is that an appeal shall not be entertained unless the appellant has deposited such percentage of duty as specified in clause (i) to clause (iii) thereof, respectively. The section, however, does not say that the appeal shall be accompanied by a challan evidencing payment of pre-deposit or that the appeal cannot be filed unless such payment has been made. Reference may also be made to the provisions of the Customs (Appeals) Rules, 1982, which prescribe the form and manner in which an appeal is required to be filed. Reference may also be made to the provisions of the Customs (Appeals) Rules, 1982, which prescribe the form and manner in which an appeal is required to be filed. On a perusal of the relevant rules, it is found that rule 3 makes provision for "Form of Appeal to Commissioner (Appeals)". Sub-rule (1) thereof provides that an appeal under sub-section (1) of section 128 to the Commissioner (Appeals) shall be made in Form No. C.A.-1; sub-rule (2) thereof provides for the grounds of appeal and the form of verification, etc.; sub-rule (3) provides that the form of appeal in Form No. C.A.-1 shall be filed in duplicate and shall be accompanied by a copy of the decision or order appealed against. Clause (6) of Form No. C.A.-1 reads thus: "Whether duty or penalty or both is deposited: If not, whether any application for dispensing with such deposit has been made. (A copy of the Challan under which deposit is made shall be furnished)." It appears that in view of the above clause (6) in Form No. C.A.-1, the respondent authorities insist that the appeal memorandum be accompanied by a challan evidencing payment of pre-deposit. 13. The learned advocate for the petitioners has drawn the attention of the court to a decision of the Supreme Court in the case of Ranjit Impex v. Appellate Deputy Commissioner and another, (2013) 10 SCC 655 , wherein, an appeal before the Deputy Commissioner I, Commercial Taxes was preferred by the appellant therein and at the time of presentation, a sum of Rs. 8,52,472/- was required to be deposited as per the calculation made under section 51 of the Tamil Nadu Value Added Tax Act, 2006, but as it was not done, the memorandum of appeal was returned to him. The learned Single Judge had disposed of the writ petition and directed the appellate authority to register the appeal and dispose of the same in accordance with law. In the writ appeal, it was contended that the appellate authority could not have returned the memorandum of appeal on the ground that section 51 used the term "entertain" and second, the amount that was due to the appellant from the Department was to be adjusted for the purpose of deposit as envisaged under section 51 of that Act. In the writ appeal, it was contended that the appellate authority could not have returned the memorandum of appeal on the ground that section 51 used the term "entertain" and second, the amount that was due to the appellant from the Department was to be adjusted for the purpose of deposit as envisaged under section 51 of that Act. The Division Bench of the High Court held that the proof of deposit of tax had to be produced at the time when the appeal was taken for consideration, but not at the time of presentation of the appeal. The Supreme Court held that the above conclusion of the Division Bench was absolutely justified, for a condition to entertain an appeal, does not mean that the memorandum of appeal shall be returned because of such non-compliance pertaining to pre-deposit. The only consequence is that the appeal shall not be entertained which means the appeal shall not be considered on merits and eventually has to be dismissed on that ground. 14. From the language employed in section 129E of the Act, it is evident that the same mandates that the appeal shall not be entertained unless the pre-deposit is made. Filing of an appeal and entertaining of an appeal are not synonymous. A party may file an appeal within the prescribed period of limitation though it may not be in a position to make the pre-deposit within such time. Considering the fact that the Commissioner (Appeals) has no power to condone the delay beyond a period of thirty days, an appeal, even when there is a delay, has to be filed within a period of ninety days from the date of receipt of the order-in-original, it may be that a party may not be in a position to arrange for the amount of pre-deposit within such period. However, that by itself, should not be a ground to totally non-suit such party, more so, when what the statute provides is that the appeal shall not be entertained unless such pre-deposit is made. However, that by itself, should not be a ground to totally non-suit such party, more so, when what the statute provides is that the appeal shall not be entertained unless such pre-deposit is made. As held by the Supreme Court in the above referred decision, a condition to entertain an appeal does not mean that the memorandum of appeal shall be returned because of such non-compliance pertaining to pre-deposit and that the only consequence is that the appeal shall not be entertained, which means the appeal shall not be considered on merits and eventually has to be dismissed on that ground. Therefore, while the Commissioner (Appeals) cannot entertain an appeal, namely, hear and decide it unless the pre-deposit is made, he cannot insist upon payment of pre-deposit as a condition precedent for filing an appeal. The condition contained in clause (6) of Form No. C.A.-1, has no statutory basis and hence, there cannot be any insistence on payment of pre-deposit prior to filing the appeal. In these circumstances, if such a practice is in fact prevailing, namely, that the memorandum of appeal is being returned if the same is not accompanied with the challan evidencing payment of pre-deposit, such conduct on the part of the respondent authorities has no legal basis. The respondent authorities are duty bound to accept the memorandum of appeal if the same is filed in the prescribed form, without insisting upon the challan evidencing payment of pre-deposit accompanying the same. If the appeal comes up for hearing and the pre-deposit is not paid, the Commissioner (Appeals) may refuse to entertain the same and dismiss it on that ground. 15. However, insofar as the present case is concerned, it is not even the case of the petitioner that he had presented the appeal and that the second respondent refused to accept the same unless it was accompanied by a challan evidencing payment of pre-deposit. It appears that the petitioner has proceeded on an assumption that the appeal papers would not be accepted without such challan and has let the statutory period lapse, thereby non-suiting himself as the Commissioner (Appeals) has no power or authority to condone the delay beyond a period of thirty days, even if sufficient cause is shown. 16. It appears that the petitioner has proceeded on an assumption that the appeal papers would not be accepted without such challan and has let the statutory period lapse, thereby non-suiting himself as the Commissioner (Appeals) has no power or authority to condone the delay beyond a period of thirty days, even if sufficient cause is shown. 16. Insofar as the challenge to the order-in-original is concerned, since there is an efficacious statutory remedy available to the petitioner, this court ordinarily would not exercise powers under Article 226 of the Constitution of India, unless the impugned order suffers from the vice of breach of principles of natural justice or is without jurisdiction or in excess of the jurisdiction conferred upon the concerned authority. 17. The question that, therefore, arises for consideration is whether the impugned order-in-original suffers from the vice of breach of the principles of natural justice. The first ground on which breach of principles of natural justice is alleged is that the adjudicating authority gave very short notice of hearing and the notices for personal hearing were sent to the address of the parents of the petitioner, who thereafter forwarded the same to the petitioner, and in the process, the petitioner was left with very little time to obtain the availability of his advocate. In this regard, it may be noted that the first notice for personal hearing was issued on 08.08.2014 fixing the hearing on 19.08.2014, and was sent to the address of the petitioner's parents who reside at Rajkot, who in turn forwarded it to the petitioner, who resides at Surat. However, the petitioner did not deem it fit to inform the adjudicating authority that the notices are being sent to the wrong address and that the same should be sent to him at Surat. Therefore, the second notice dated 15.09.2014 fixing personal hearing on 25.09.2014, was once again served at the address of the petitioner's parents at Rajkot on or about 22.09.2014 and according to the petitioner, it was difficult to obtain the availability of the Ahmedabad based advocate to appear before the adjudicating authority at Jamnagar within such a short time. It appears that in response to the notices of personal hearing, a preliminary reply came to be filed together with a letter dated 25.09.2014, whereby the petitioner also sought for an opportunity of personal hearing. It appears that in response to the notices of personal hearing, a preliminary reply came to be filed together with a letter dated 25.09.2014, whereby the petitioner also sought for an opportunity of personal hearing. Thereafter, without such opportunity of hearing having been granted, the petitioner filed his final reply dated 07.10.2014 and also sought for an opportunity of personal hearing. However, the adjudicating authority, without grant of such opportunity, passed the impugned order. 18. Thus, two notices for personal hearing came to be issued to the petitioner, who, however, for the reasons recorded hereinabove, did not appear before the adjudicating authority. On behalf of the petitioner, reliance has been placed on the proviso to sub-section (2) of section 122A of the Act for the purpose of contending that it was incumbent upon the adjudicating authority to grant at least three adjournments and that since only two opportunities were granted to the petitioner, the impugned order is bad as the procedure followed by the adjudicating authority is inconsistent with the statutory provisions. 19. In this regard, reference may be made to the provisions of section 122A of the Act, which read thus: "122A. Adjudication procedure. - (1) The adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in subsection (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during the proceeding." 20. A bare reading of the provisions of section 122A of the Act shows that sub-section (1) thereof provides for giving an opportunity of being heard to a party in a proceeding, if the party so desires. Sub-section (2) envisages grant of time to parties upon sufficient cause being shown at any stage of the proceeding. The sub-section, however, provides for recording of reasons for adjourning the proceeding. The proviso thereto circumscribes the power to grant time, and provides that not more than three adjournments shall be granted to a party during the proceeding. Sub-section (2) envisages grant of time to parties upon sufficient cause being shown at any stage of the proceeding. The sub-section, however, provides for recording of reasons for adjourning the proceeding. The proviso thereto circumscribes the power to grant time, and provides that not more than three adjournments shall be granted to a party during the proceeding. Therefore, in all, section 122A of the Act provides for grant of a maximum of three adjournments. On a conjoint reading of sub-section (2) of section 122A of the Act and the proviso thereto, what emerges is that if sufficient cause is made out, the proceeding may be adjourned for a maximum of three occasions. However, the proviso cannot be read to mean that it mandates the grant of three adjournments. Since sub-section (2) provides for grant of adjournment only if sufficient cause is made out and by recording reasons, it goes without saying that a party is not entitled to three adjournments as a matter of course, but has to show sufficient cause for seeking adjournment. Moreover, the provision imposes an obligation upon the authority to record reasons for adjourning the matter. Therefore, unless sufficient cause is made out, the proceeding at whatever stage, may not be adjourned. In the present case, while it is the case of the petitioner that only two adjournments were granted to him, the respondents in their affidavit-in-reply, have stated that opportunities of personal hearing were granted on 09.05.2014, 19.08.2014, 10.09.2014 and 25.09.2014. The learned advocate for the petitioner has, however, drawn the attention of the court to the fact that the matter had been assigned to the adjudicating authority after 09.05.2014, to submit that therefore, there would be no question of grant of any opportunity of personal hearing on that date. Thus, in all, the petitioner has been granted three opportunities of personal hearing and two adjournments, whereas the statute envisages a maximum of three adjournments. In the opinion of this court, what the statute prescribes is the maximum number of adjournments that can be granted, but does not say that in every case, three adjournments should, as a matter of course, be granted. If the adjudicating authority does not find sufficient cause, he may not adjourn the proceeding. Therefore, merely because in all three adjournments have not been granted to the petitioner, would not tantamount to breach of the principles of natural justice as alleged. If the adjudicating authority does not find sufficient cause, he may not adjourn the proceeding. Therefore, merely because in all three adjournments have not been granted to the petitioner, would not tantamount to breach of the principles of natural justice as alleged. Having regard to the overall facts that have come on record, and more particularly considering the fact that in the present case there were a large number of other co-noticees, the court is of the view that the contention regarding breach of principles of natural justice on account of non-grant of three adjournments, does not merit acceptance. 21. In Automotive Tyre Manufacturers Association v. Designated Authority (supra), the Supreme Court has held that it is well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. In the opinion of this court, the above referred decision would not come to the aid of the petitioner, inasmuch as, it is not as if the petitioner was not granted any opportunity of hearing. The petitioner was granted three opportunities of hearing, out of which on the first two dates, the petitioner did not remain present and on the third date, he filed preliminary reply and subsequently filed written reply and also prayed for an opportunity of personal hearing. Thus, it is this last request for grant of opportunity of personal hearing which has not been granted and the adjudicating authority has proceeded to adjudicate the proceeding. In the aforesaid premises, it cannot be said there is any breach of principles of natural justice on the ground of non-grant of opportunity of hearing to the petitioner. 22. The decision of this court in Meghmani Organics Limited v. Union of India (supra), would, for the same reasons, not be attracted in the facts of the present case. In the aforesaid premises, it cannot be said there is any breach of principles of natural justice on the ground of non-grant of opportunity of hearing to the petitioner. 22. The decision of this court in Meghmani Organics Limited v. Union of India (supra), would, for the same reasons, not be attracted in the facts of the present case. The decision of the Bombay High Court in Khandelwal Laboratories Ltd. v. Union of India (supra) was rendered in the facts of the said case, wherein the petitioner had requested for time to produce documents and he was assured that time would be granted, and it is in these circumstances that the court found that there was a clear breach of the principles of natural justice. 23. The next contention is that no findings have been given on the written submissions submitted by the petitioner. In this regard, a perusal of the order-in-original shows that in paragraph-41 thereof, the adjudicating authority has considered the preliminary objections dated 25.09.2014 submitted by the petitioner through his advocate as well as the further reply dated 07.10.2014 and has recorded its findings qua the petitioner in paragraph-63 of the order. Having regard to the submissions made in the reply and the findings recorded by the adjudicating authority, it is not possible to say that the adjudicating authority has not given findings in respect thereof. The contention that the impugned order is a non-speaking order as it does not record any findings on the submissions made by the petitioner, therefore, cannot be accepted. 24. Another contention raised is that in respect of the same cause of action, for the same period, essentially on the same evidence, a show cause notice dated 24.01.2011 had been issued by the second respondent, which culminated into an order-in-original dated 30.03.2012, whereby the penalty of Rs. 75,00,000/- came to be imposed on the petitioner, against which an appeal is pending before the Tribunal. It has been contended on behalf of the petitioner that repeated show cause notices in respect of the same period and on the same allegation based on the same material, are not sustainable in law. 75,00,000/- came to be imposed on the petitioner, against which an appeal is pending before the Tribunal. It has been contended on behalf of the petitioner that repeated show cause notices in respect of the same period and on the same allegation based on the same material, are not sustainable in law. In this regard, from the averments made in the affidavit-in-reply, it is evident that the show cause notice dated 24.01.2011 covered certain shipping bills, whereas the present show cause notice pertains to different shipping bills than those covered by the earlier show cause notice. Therefore, it cannot be said that the earlier show cause notice was in respect of the same cause of action. In the light of the above, it is evident that the petitioner has failed to establish any breach of the principles of natural justice warranting exercise of the extraordinary jurisdiction by this court under Article 226 of the Constitution of India. 25. Last but not least, the petitioner has approached this court only after his application for condonation of delay came to be rejected by the Commissioner (Appeals). It is not as if the petitioner had directly approached this court invoking its writ jurisdiction on the ground that the order-in-original has been passed in breach of the principles of natural justice. The petitioner, therefore, all the while intended to prosecute the remedy of appeal under section 128 of the Act. It is only because the appeal became time barred that the petitioner, after the rejection of his application for condonation of delay, has moved the present petition. In the opinion of this court, if such course of action is permitted, the High Court would be flooded with matters where the parties have not filed appeals within the prescribed period of limitation, converting the High Court into an alternative forum for time barred appeals. Such a practice needs to be discouraged. That is not to say that in a given case the High Court may not interfere. It would depend on the facts and circumstances of the case. Such a practice needs to be discouraged. That is not to say that in a given case the High Court may not interfere. It would depend on the facts and circumstances of the case. However, insofar as the present case is concerned, in the absence of any breach of the principles of natural justice or lack of jurisdiction or improper exercise of jurisdiction on the part of the adjudicating authority being made out, when there is an efficacious alternative remedy of appeal before the Appellate Tribunal under section 129A of the Act, the petition deserves to be dismissed as not maintainable. 26. In the light of the above discussion, the petitions fail and are, accordingly, dismissed. Notice is discharged in each of the petitions with no order as to costs. 27. It is clarified that this court has entered into the merits of the orders-in-original and has dismissed the petitions on the ground of maintainability alone.