ORDER
P.K. Desai, Member (J)
1. Today only the Stay Petition was listed for hearing, however considering the issue involved, granting waiver against the pre-deposit, we take up the appeal for hearing.
2. This appeal is directed against the Order-in-Original No. DRI/BZU/C/5/95/5364, dated 13-12-1995, passed by the Commissioner of Customs, Sahar International Airport, Mumbai, imposing personal penalty of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) on the appellants, on charge that he was the persons responsible in smuggling of the goods and the remitting the foreign currencies which were the sale proceeds of the smuggled goods.
3. Heard Shri N.B. Sonavane the Consultant. He submits that the Show Cause Notice weas served on the appellant, when he was under detention and he could not therefore, file any reply, and notice of personal hearing was sent at the residential address, which would not served on him and was returned undelivered, with the postal endorsement unclaimed. He submits that the appellant was, at the relevant period, not at his native place and hence, he could not receive the notice. The proceedings have been conducted Ex parte against him and that has resulted in denial of right of hearing amounting to non-compliance with the principles of natural justice. In his submission therefore, the matter may go back to the Commissioner for appropriate decision. He undertakes to keep the appellant present on the day as fixed for the personal hearing.
4. Shri Krishnamurthy the ld. JDR however submits that the notice for personal hearing was duly issued but, because of non-availability of the appellant or for any other reason. Which are not disclosed, the notice has come undelivered. Therefore proceedings in the matter held…. Ex parte against the present appellant. In his submission therefore there is no violation of the principles of natural justice.
5. Considering the submissions, it remains an established fact that the appellant has not been heard before the impugned order is passed. The notice sent to him has been returned with the postal endorsement of unclaimed, indicating that the same was not claimed by any one, when it was claimed when (sic) sought to be delivered, this could not tantamount to refusal of the notice. The appellant ought to have been granted adequate opportunity of being heard and now with the consultant undertakes to either keep the appellant present or personally represent him at the time of personal hearing, it seems just and proper that the order passed Ex parte is set aside, with the direction that the Commissioner may fix suitable date for hearing and serve the notice the appellant as also the ld. Consultant who has personally undertaken to keep the appellant present at the time of hearing.
6. The impugned order, so far as it relates to the present appellant, is therefore set aside and the matter is remanded back to the Commissioner of Customs for giving opportunity to the appellant of being heard. Appeal is allowed by way of remand.