ORDER
P.G. Chacko, Member (J)
1. After examining the records and hearing both sides, I am of the view that this matter can be finally disposed at this stage. Accordingly, I allow the present application and proceed to deal with the appeal.
2. In the show-cause notice issued to the appellants, the department alleged suppression of removal of certain quantity of inputs during the period 1-4-96 to 18-3-98. The allegation was raised on the basis of detection of shortage of the said quantity of the goods in the appellant’s factory by the officers of central excise. The officers had resumed various records from the factory. Statements were also recorded. The show cause notice which was issued on the basis of these investigative results, called upon the party to pay the duty of Rs. 4,66,570/- on the above inputs, and also proposed to impose mandatory penalty on them under Section 11AC of the Central Excise Act and further penalty under Rule 173Q of the Central Excise Rules, 1944. The appellant’s initially did not respond to the notice. The Addl. Commissioner of Central Excise, by letter dated 11-4-2000, reminded the party of the allegation in the show-cause notice and called upon them to submit their reply, if any. In reply to that letter, the appellants wrote to the Addl. Commissioner on 4-5-2000 requesting that copies of the relied-upon documents be supplied to enable them to make an effective reply to the show-cause notice. The Addl. Commissioner, however, ignored the party’s request and passed in order of adjudication in the matter, and that too, without giving the appellants any opportunity of being personally heard. The adjudicating authority, in its order, endeavoured to justify the non-grant of opportunity of hearing by observing that the party had not requested for any opportunity of being heard. The aggrieved party preferred appeal to the Commissioner (Appeals). In that appeal, the appellants pleaded at the outset that natural justice had been denied to them by the original authority. These pleadings were made as grounds Nos. 1 to 8 of the “grounds” stated in the Memorandum of Appeal filed with the Commissioner (Appeals). The ld. Commissioner (Appeals), however, in his order maintained that the original authority had given sufficient opportunity of hearing to the party. On the merits of the case, he affirmed the decision of the lower authority, though he set aside the penalty imposed under Rule 173Q. Hence the present appeal.
3. On a close perusal of the records of the case, I am convinced of the negation of natural justice by the adjudicating authority to the appellants.
The view taken by the Addl. Commissioner that opportunity of being heard
was not given to the party as they did not ask for it cannot be sustained in
law. It is true that the appellants did not specifically ask for personal hearing
in their letter dated 4-5-2000, but they did not expressly or impliedly waive
their right to be heard, either. More important, they made a specific request
in their letter dated 4-5-2000 to the Addl. Commissioner for supply of all the
relied-upon documents. That request was ignored by the Addl. Commissioner, who thereby virtually denied to the party the opportunity of effectively replying to the allegations in the show-cause notice. This omission of
the original authority amounted to gross negation of natural justice. To cap it
all, the original authority passed its order without asking the party to show
cause why an ex parte order shall not be passed. In any view of the matter, the
order of the Addl. Commissioner cannot be sustained. Where an assessee
does not expressly or impliedly waive the right to be heard, it is incumbent
on a quasi judicial authority to grant him an opportunity of being heard. This
is the rule of audi alteram partem which requires to be strictly followed by all
quasi judicial authorities. The fervent plea made by the party to the principles
of natural justice was not examined in a manner be fitting an appellate authority. This lapse on the part of the lower appellate authority brings to the
fore a legal infirmity in the impugned order. Both the orders are set aside and
the present appeal is allowed by way of remand. The adjudicating authority
shall provide the party with authentic copies of all the relied upon documents and pass a fresh speaking order in adjudication of the show-cause notice. Needless to say that the party shall be given a reasonable opportunity of
being heard.