{"id":219670,"date":"2008-07-11T00:00:00","date_gmt":"2008-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dhariyal-vs-union-on-11-july-2008"},"modified":"2015-07-30T10:04:47","modified_gmt":"2015-07-30T04:34:47","slug":"dhariyal-vs-union-on-11-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dhariyal-vs-union-on-11-july-2008","title":{"rendered":"Dhariyal vs Union on 11 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dhariyal vs Union on 11 July, 2008<\/div>\n
Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/5769\/2008\t 24\/ 24\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 5769 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE D.A.MEHTA  Sd\/-\n \n\n \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\nSd\/- \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ? \n\t\t\tYES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?  YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?  NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?  NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?  NO\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nDHARIYAL\nCHEMICALS - Petitioner(s)\n \n\nVersus\n \n\nUNION\nOF INDIA & 3 - Respondent(s)\n \n\n==============================================================\nAppearance : \nMR\nPARESH M DAVE for Petitioner(s) : 1, \nNOTICE SERVED for\nRespondent(s) : 1 - 2. \nMR HARIN P RAVAL for Respondent(s) :\n1, \nNOTICE SERVED BY DS for Respondent(s) : 3 -\n4. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.A.MEHTA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\nDate\n: 11\/07\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE D.A.MEHTA)<\/p>\n
1\tThis
\npetition has been preferred  by one Yogesh Dhariyal, sole
\nproprietor of  Messrs Dhariyal Chemicals. The following prayers have
\nbeen made in the petition :\n<\/p>\n
?S(A)\tThat Your Lordships may
\nbe pleased to issue  a Writ of Mandamus or a writ in the nature of
\nMandamus or any other appropriate  writ, direction or order, striking
\ndown as ultra-vires Rule 12CC of the Central Excise Rules, 1944 and
\nNotification No.32\/2006-CE (NT) dated 30.12.2006;\n<\/p>\n
(B)\tThat Your Lordships may be
\npleased to issue a Writ of Mandamus or a Writ of Certiorari or any
\nother appropriate writ, direction or order, quashing  and setting
\naside Order No. 6\/2008-M (CX)\/DA dated 22.2.2008 (Annexure-‘N’)
\nissued by the second respondent thereby directing the respondents,
\ntheir servants and agents to permit the petitioner  to utilize cenvat
\ncredit for paying  excise duties on the goods cleared for home
\nconsumption during the period from  27.2.2008 to 26.5.2008 and even
\nthereafter;\n<\/p>\n
(C) That Your Lordships may be
\npleased to issue a writ of Mandamus or a Writ in the nature of
\nMandamus or any other appropriate  writ, direction or order,
\ndirecting the respondents, their servants and agents to forthwith
\ngive to the petitioner copies of all the seized documents and also
\nthe statements on which signatures of the petitioner as well as Shri
\nGanesh Dutt Joshi are taken by the Preventive Officers functioning
\nunder respondent no.4 herein;\n<\/p>\n
(D)\tPending hearing and final
\ndisposal of the present petition, Your Lordships may be pleased to
\nstay implementation and execution  of Order No.6\/2008-M (CX)\/DA dated
\n22.2.2008 (Annexure-‘N’) issued by the second respondent thereby
\nallowing the petitioner  to utilize cenvat credit for discharing duty
\nliabilities on the goods cleared by the petitioner for home
\nconsumption;\n<\/p>\n
(E)\tAn ex-parte ad-interim
\nrelief in terms of Para 9(C) above may kindly be granted;\n<\/p>\n
(F)\tAny other further relief
\nas may be deemed fit in the facts and circumstances of the case may
\nalso please be granted??.\n<\/p>\n
2.
\nOn 29.08.2007 the officers of the preventive wing of Central Excise
\nDepartment  visited the factory premises of the petitioner and seized
\n certain documents  and records. A panchnama  had been duly drawn up.
\nThe said documents and records also included certain records  of
\nanother manufacturing unit  named M\/s. Ganesh Enterprises, a
\nproprietary concern of one Shri  Ganesh Dutt Joshi, cousin of the
\npresent petitioner. It is the say of the petitioner that  on
\n31.08.2007 both the petitioner and  Shri Ganesh Dutt Joshi were
\ncalled by the officers of the preventive  wing and pressurised to
\nsign certain documents  and statements prepared by the said officers.
\nTherefore, regarding the aforesaid events, the petitioner swore an
\naffidavit on 5.9.2007 and filed the same in the office of the
\nAdditional Commissioner (Preventive) under certificate of posting. It
\nappears that  similar exercise took place on 6.9.2007 and 11.9.2007
\nfollowed by affidavits dated 10.9.2007 and 13.9.2007 by the
\npetitioner.\n<\/p>\n
3.\tOn
\n16.10.2007 the petitioner was addressed  a letter from the office of
\nthe Chief Commissioner of Central Excise which reads as under :\n<\/p>\n
?SOFFICE OF THE CHIEF
\nCOMMISSIONER OF CENTRAL EXCISE, 7th floor : CENTRAL
\nEXCISE BHAVAN, AMBAWADI, AHMEDABAD ?  380 015.\n<\/p>\n
 BY SPEED POST<\/p>\n
                             Date
\n: 16.10.2007<\/p>\n
F.No.IV\/30-88\/CCO\/Tech\/2007<\/p>\n
To,<\/p>\n
Shri Yogesh Chandradutt
\nDharaiyal,<\/p>\n
M\/s.Dhariyal Chemicals,<\/p>\n
4,Prabhudas Estate,<\/p>\n
Nr. Sabar Tiles,<\/p>\n
Danilimda, Ahmedabad.\n<\/p>\n
Gentleman,<\/p>\n
Sub : Central Excise Case
\nagainst M\/s. Ganesh Enterprises, Plot No.2, Prabhudas Patel Estate,
\nNr. Sabar Tiles, Danilimda, Ahmedabad.\n<\/p>\n
The Chief Commissioner,
\nCentral Excise, Ahmedabad has fixed the personal hearing on 29.10.07
\nat 3.00 p.m. in the Office of the Chief Commissioner,  7th
\nFloor, Central Excise Bhavan, Ambawadi, Ahmedabad. It is therefore
\nrequested to attend the same on the date and time mentioned above.\n<\/p>\n
Yours faithfully,<\/p>\n
Sd\/-\n<\/p>\n
Additional
\nCommissioner??.\n<\/p>\n
4.\tThe
\nsaid appointment was postponed  to 30.10.2007 vide letter dated
\n26.10.2007. Thereafter, the Chief Commissioner of Central Excise
\n(CCCE) personally heard the petitioner  as well as Mr. Ganesh Dutt
\nJoshi and one Dr.C.D.Dhariyal, the father of the petitioner on
\n30.10.2007. At the said hearing the purpose of the hearing was
\ndisclosed  by the CCCE and the said fact has been recorded in the
\nfollowing words by the CCCE :\n<\/p>\n
?SOn being asked to tender
\ntheir submissions on  the issue relating to withdraw of facility of
\nmonthly payment  of excise duty  and also the  payment of Central
\nExcise duty by utilization of CENVAT credit, Shri Yogesh Dhariyal
\nsubmitted that the facility extended to them under  Central Excise
\nLaw should not be withdrawn as the same would put them  under
\nfinancial constraint, and since they had not done any wrong.??\n<\/p>\n
5.\tThereafter,
\nit appears that CCCE forwarded a proposal to the Central Board of
\nExcise & Customs (CBEC). On 22.08.2008 Order No.6\/08-M(CX)\/DA
\ncame to be made by Member of CBEC whereunder following directions
\nwere issued :\n<\/p>\n
  ?S                ORDER\n \n\n\n5.\tIn view of the above, I\nhereby pass the following order :-\n \n\n\n(i)\tThe facility of monthly\n<\/pre>\n
payment of excise duty by M\/s. Dhariyal Chemicals, as provided under
\nrule 8(1) of the Central Excise Rules, 2002, is ordered to be
\nwithdrawn and they are required to pay excise duty  for each
\nconsignment at the time of removal of the goods with effect from
\n27.02.2008 to 26.05.2008.\n<\/p>\n
(ii)\tPayment of excise duty by
\nutilisation of CENVAT credit as provided under rule  3(4) of the
\nCENVAT  Credit Rules, 2004, is ordered to be stopped  with effect
\nfrom 27.02.2008 to 26.05.2008. During this period, they are required
\nto pay  excise duty without  utilising  CENVAT credit. However, they
\nare permitted to take CENVAT credit during this period which can be
\nutilised  for payment of duty  with effect from  27.05.2008??.\n<\/p>\n
6.\tThe
\nlearned Advocate for the petitioner  has assailed the aforesaid order
\ndated 22.02.2008 (hereinafter referred to as impugned order) by
\nreiterating the facts narrated in the petition and also challenged
\nthe validity of Rule 12CC of the Central Excise Rules, 1944 (the
\nRules) and Notification No. 32\/2006-CE(MT) dated 30.12.2006 (the
\nNotification). It was contended that respondent No.2 has made an
\norder which is exparte and hence, it is required to be struck down as
\nbeing in violation of principles of natural justice. That Rule 12CC
\nof the Rules and the aforesaid Notification  are ultravires Article
\n14 of the Constitution of India because :(1) the scheme envisaged by
\nthe Notification has no nexus with the objective sought to be
\nachieved; (2) is in utter violation of principles of natural
\njustice;(3) deprives  assessee of its legitimate right of utilising
\nCENVAT credit.\n<\/p>\n
6.1.\tAccording
\nto the learned Advocate the impugned order is required to be struck
\ndown because  the same has been made without  granting  an
\nopportunity of hearing. Not only this, it was submitted, even the
\nCCCE had formulated  reasonable belief that the facilities available
\nto the petitioner were required to be withdrawn without proper
\nopportunity. In this connection, attention was invited to paragraph
\nNo.4(2) of the Notification to submit that the Notification itself
\nprovides for granting an opportunity of hearing to the person against
\nwhom the proceedings have been initiated but no such opportunity was
\ngranted. That the notice in the form of letter dated 16.10.2007
\nmerely invited the petitioner for hearing without specifying as to
\nwhy and for what purpose the hearing was granted. It was therefore
\nurged that in light of the aforesaid fact situation the impugned
\norder was required to be struck down.\n<\/p>\n
7.\tOn
\nbehalf of the respondent authorities  learned Counsel submitted that
\nin so far as the challenge to validity of Rule 12CC of the Rules and
\nthe Notification is concerned no case was made out by the petitioner
\nas to how and in what manner the said Rule and the Notification are
\nultravires the Constitution.\n<\/p>\n
7.1
\n\tIn relation to the requirement of  paragraph No.4(2) of the
\nNotification granting  an opportunity of hearing, it was submitted
\nthat  such an opportunity was granted  as could be seen from
\ncommunication dated  16.10.2007 and bearing in mind the object and
\npurpose of the Notification no case was made out for conducting a
\nfull-fledged proceeding  as in case of regular assessment by issuing
\nShow Cause Notice etc. That in the facts of the present case, in
\nfact, the petitioner was aware about the purpose for which the
\npetitioner was called and this was apparent from written submissions
\ndated 30.10.2007 filed by the petitioner before CCCE. That the said
\nwritten submissions referred to the Notification  in question and
\ntherefore it was apparent that the procedure adopted by CCCE was in
\naccordance with the requirement of Notification and there can be no
\nviolation of provisions of paragraph No.4(2) of the Notification as
\ncontended.\n<\/p>\n
7.2.\tIt
\nwas further submitted that the principles of natural justice did not
\nwarrant that in each and every case  a person is required to be
\ngranted a full-fledged hearing accompanied by documents etc.,
\nespecially  when the person concerned is aware about the purpose for
\nwhich the hearing is granted. That every violation complained of,
\nneed not be entertained by the Court unless and until the person
\ncomplaining of the violation establishes prejudice caused to the
\nperson. It was further submitted that in the present case the
\npetitioner cannot complain of being prejudiced by the procedure
\nadopted by CCCE when one considers the record and therefore, the
\npetitioner was not entitled to any relief whatsoever.\n<\/p>\n
8.\tBefore
\nadverting to relevant paragraphs of the Notification, it is necessary
\nto note certain undisputed facts. The petitioner and Mr. Ganesh Dutt
\nJoshi are cousins. The units of the petitioner and Shri Joshi are
\nrespectively located at (1) 4, Prabhudas Estate, Nr. Sabar Tiles,
\nDani Limbda, Ahmedabad and (2) 2, Prabhudas Estate, Nr. Sabar Tiles,
\nDani Limbda, Ahmedabad. Both the units manufacture the same goods
\nviz. Cellulose and its derivatives which are substitutes to such
\nimported products. The petitioner was enjoying  (1) facility of
\nmonthly payment of excise duty as provided under Rule 8(1) of the
\nCentral Excise Rules, 2002, and (2) facility of payment of excise
\nduty by utilization of CENVAT  credit as provided under Rule 3(4) of
\nthe Cenvat Credit Rules,2004. Mr. Ganesh Dutt Joshi has gone on
\nrecord to state that the activities of  M\/s. Ganesh Enterprises were
\nlooked after by Mr.Yogesh Dhariyal since more than five years,
\nincluding opening and operating the Bank Account of M\/s. Ganesh
\nEnterprises in Bank of Baroda and other bank. At one stage Mr.Joshi
\nhas stated that a power of attorney has been executed in favour of
\nMr. Yogesh Dhariyal and at another place  Mr.Joshi has denied having
\nexecuted such power of attorney. In the backdrop of the aforesaid
\nfacts  CCCE moved a proposal upon which the impugned order came to be
\nmade by Member, CBEC on 22.2.2008.\n<\/p>\n
9.\tIn
\nso far as challenge to validity of Rule 12CC of the Rules and the
\nNotification is concerned, it is not possible  to accept  the
\ncontention raised  on behalf of the petitioner. Rule 12CC of the
\nRules grants power to the Central Government to issue a Notification
\nwhereunder specific restrictions may be placed on the specified
\ncategory of persons  having regard to the extent of  evasion of duty,
\nnature and type of offence or such other factors as may be relevant
\nin order to prevent such evasion, default in payment of excise duty
\netc. In exercise of these powers Notification No. 32 of 2006-CE(NT)
\ndated 30.12.2006 has been issued. The Notification provides for a
\nsummary scheme which is to act as a deterrent against tax evaders by
\nwithdrawal of facilities from such persons.\n<\/p>\n
10.
\n\tOn a plain reading of  Rule 12CC of the Rules and the impugned
\nNotification it becomes apparent that  the Rule and the Notification
\nhave been framed for a specified class of persons having reasonable
\nnexus with the object sought to be achieved, and this becomes
\nabundantly clear when one considers paragraph No.3 of the
\nNotification which lays down the monetary limit in which class of
\ncases the Notification shall be made applicable. Therefore, there is
\nno merit in the challenge to constitutional validity of the Rule and
\nthe Notification.\n<\/p>\n
11.\tIn
\nso far as the grievance ventilated regarding  lack of opportunity
\nbefore passing of the impugned order by Member,CBEC, it is necessary
\nto consider the procedure prescribed by paragraph No.4 of the
\nNotification. The relevant part of the Notification reads as under :\n<\/p>\n
?S4.\tProcedure.-(1) The
\nCommissioner of Central Excise or Additional Director General of
\nCentral Excise Intelligence, as the case may be, after examination of
\nrecords and other evidence, and after  satisfying  himself that  the
\nperson has knowingly  committed the offence as specified  in para 1,
\nmay  forward a proposal to the Chief Commissioner of Director
\nGeneral of Central Excise Intelligence, as the case may be,
\nspecifying  the facilities  to be  withdrawn and restriction  to be
\nimposed and the period of such  withdrawal  or restrictions,  within
\n30 days of the  detection of the case, as far as possible.\n<\/p>\n
(2)\tThe Chief Commissioner of
\nCentral Excise or Director General of Central Excise Intelligence, as
\nthe case may be,  shall examine  the said proposal and after
\nsatisfying himself that  the records  and evidence relied upon in the
\nsaid proposal  are sufficient  to form a reasonable  belief that  a
\nperson has  knowingly committed  the offences specified  in para 1,
\nmay forward the proposal along with his recommendations  to the
\nBoard. However, the Chief Commissioner of Central Excise or Director
\nGeneral of Central Excise Intelligence, before forwarding his
\nrecommendations, shall give an opportunity  of being heard to the
\nperson against whom  the proceedings have been initiated and shall
\ntake  into account  any representation made by such person before he
\nforwards his recommendations to the Board.\n<\/p>\n
(3)\tAn officer authorized by
\nthe Board shall examine  the recommendations received from the Chief
\nCommissioner of Central Excise or Director General  of Central Excise
\nIntelligence and issue an order specifying  the type of  facilities
\nto be withdrawn or type of restrictions  imposed, along with  the
\nperiod for which said facilities will not be available or the period
\nfor which the restrictions shall be operative.??\n<\/p>\n
12.\tParagraph
\nNo. 4(1) provides for either CCE or Additional Director General to
\nforward a proposal to CCCE or Director General  as to the nature of
\noffence committed by the person in whose case  a satisfaction is
\narrived at after examination of records and other evidence that
\nspecified facilities be withdrawn for a specified period  and such
\nproposal has to be made within 30 days of the detection of the case,
\nas far as possible. In sub-paragraph No.(2) of paragraph No.4 of the
\nNotification CCCE is required to examine the proposal  placed before
\nhim, and after satisfying himself that the records and the evidence
\nrelied upon in the proposal are sufficient to form a reasonable
\nbelief that a person has knowingly committed the offence specified in
\nparagraph No.1 of the Notification, may forward the proposal along
\nwith his recommendations to the Board. The latter part of the said
\nsub-paragraph states that however, before the CCCE forwards his
\nrecommendations he shall give an opportunity  of being heard to the
\nperson against whom the proceedings  had been initiated  and shall
\ntake into account any representation made by such person before
\nforwarding  the recommendations.  Sub-paragraph No.(3) of paragraph
\nNo.4 of the Notification provides for an officer, authorised by the
\nBoard, to examine the recommendations received from CCCE and issue an
\norder specifying the type of facilities  to be withdrawn or the type
\nof restrictions to be imposed, along with the period  for which such
\nfacilities will not be available or the period for which  the
\nrestrictions shall be operative.\n<\/p>\n
13.\tThe
\nscheme that unfolds, therefore, is that the stage at which a proposal
\nis made by the authority subordinate to CCCE, it is not necessary to
\ngrant any opportunity to the person concerned. However, CCCE is not
\nbound by the proposal and if after considering the records and the
\nevidence in support of the proposal  CCCE finds that the evidence and
\nthe record are not sufficient to form a reasonable belief that the
\nperson has knowingly committed the offence, he has the discretion
\nnot to forward the proposal. Similarly even after forming a
\nreasonable belief, if after hearing the person concerned and after
\nconsidering the representation made by the person concerned,  if the
\nCCCE comes to the conclusion that the records and evidence are not
\nsufficient in light of the representation and the hearing to form a
\nreasonable belief the proposal may not be forwarded by the CCCE. This
\nbecomes abundantly clear when one reads the last portion of the first
\npart of sub-paragraph No.(2) of paragraph No.4 of the Notification
\nwhich stipulates: ?Smay forward the proposal along with his
\nrecommendations to the Board??. The use of the term ?Smay??
\nitself indicates that the  CCCE is not expected  to act mechanically
\nand approve the proposal placed before him. Thus a discretion is
\nvested in the CCCE: either to forward the proposal, or refuse to
\nforward the proposal, or forward the proposal with modification as to
\nthe withdrawal of facilities and restrictions  to be imposed or the
\nperiod during which there may be withdrawal of facilities or
\nimposition of restrictions.\n<\/p>\n
14.\tIn
\nthe circumstances, an opportunity of hearing  which is granted to the
\nperson concerned cannot be termed to be an idle formality once the
\nprovisions of the Notification itself have provided for this
\nsituation, viz. vesting CCCE with a discretion, with or without
\nhearing. It cannot be stated that the hearing that is required to be
\ngranted to the person concerned is only for a limited purpose. If
\nsuch opportunity of hearing  is to be meaningful the notice calling
\nupon the person concerned to represent his case must indicate briefly
\nthe gravamen   of the charge which the person is to meet  with and
\nthe nature of evidence on the basis of which the proposal is moved so
\nas to enable the person concerned to make an effective representation
\neither to reject the proposal, or modify the proposal considering the
\noffence committed, the period of offence, etc., including any special
\ncircumstances that might be within the knowledge of the person
\nconcerned and may not have come on record of the proceedings of
\nproposal. The respondent authority cannot be heard to  state, in such
\ncircumstances, that because the person concerned was aware of the
\nproceedings taken  prior to making of the proposal by CCE no further
\nopportunity is required and it would suffice if only the person
\nconcerned is invited for hearing.\n<\/p>\n
15.\tThe
\naforesaid view is fortified by language of sub-paragraph No.(3) of
\nparagraph No.4 of the Notification which does not provide for any
\nhearing by the authorised officer before issuing  order specifying
\ntype of facilities to be withdrawn or type of restrictions  to be
\nimposed along with the period  for which  such facilities will not be
\navailable or the restrictions shall operate. Therefore, when at the
\nfirst stage, viz. making of a proposal  the person concerned has no
\nvoice, and at the final stage, when the order is issued the person
\nconcerned has no voice, the second stage, viz. when CCCE makes his
\nrecommendations the opportunity of hearing which is granted to the
\nperson concerned has to be a meaningful opportunity, and cannot be
\ntreated as a mere formality. Because that is the only stage at which
\nthe opportunity of hearing is granted.\n<\/p>\n
16.\tEven
\nif one accepts the fact that the scheme provided under the impugned
\nNotification is a summary scheme in relation to class of persons who
\nmay be treated as tax evaders, once the Notification itself  provides
\nfor an opportunity of hearing  the same cannot be taken away on the
\nspecious plea, as canvassed by revenue, that the object and purpose
\nof the Notification is to act as a deterrent. By merely referring to
\nthe object and purpose of the Notification, the respondent
\nauthorities cannot be permitted to wish away the procedure
\nprescribed under the very Notification.  One part of the Notification
\ncannot be so read as to make another part thereof redundant.\n<\/p>\n
17.\tIn
\nthese circumstances, the contention on behalf of the petitioner that
\nthe impugned order  made  by respondent No.2 authority without
\ngranting an opportunity of hearing is bad in law cannot be accepted,
\nbut at the same time it has to be recorded that before forwarding the
\nproposal with recommendations CCCE had not complied with the
\nstatutory requirements and the procedure adopted was bad in law. In
\nthe normal circumstances, the Court would have, at this stage,
\nquashed and set aside the order made on the basis of such a proposal
\nwith recommendations, but in light of the facts and circumstances
\nwhich have come on record  the petitioner is not entitled to such an
\nequitable relief in exercise of powers under  Article 226 of the
\nConstitution of India. The question, that would then survive is, as
\nto what should be the final relief, if any, that should be made
\navailable to the petitioner in the peculiar facts and circumstances
\nof the case. As noted hereinbefore,  the final order  made by
\nrespondent No.2 authority has withdrawn the facility of monthly
\npayment of excise duty and restricted payment of excise duty by
\nutilization of CENVAT credit for the period 27.02.2008 to 26.05.2008.
\nIn so far as the first part of the order is concerned  viz. paragraph
\nNo.5(i) of the impugned order, suffice  it to state that  the said
\norder has been permitted to operate and has exhausted itself
\nconsidering the period was from 27.02.2008 to 26.05.2008.\n<\/p>\n
18.\tIn
\nso far as the restriction imposed vide paragraph No. 5(ii) of the
\nimpugned order, vide order dated  03.04.2008  the High Court had
\ngranted ad interim stay of operation and implementation of the said
\ndirection.\n<\/p>\n
19.\tIn
\nthe circumstances, considering the fact that on facts the petitioner
\ndoes not deserve to be granted any relief the operation of paragraph
\nNo.5(ii) of the impugned order which was stayed with effect from
\n03.04.2008 till date shall stand revived from tomorrow i.e.
\n12.07.2008 and shall continue to operate for the  remainder of the
\nperiod after deducting the period from 27.02.2008 to 03.04.2008,
\nbearing in mind that the restriction was for a period of 90 days in
\nthe impugned order. Accordingly, ad-interim stay of operation and
\nimplementation of paragraph No.5(ii) of the impugned order dated
\n22.02.2008 made by respondent No.2 authority stands vacated.\n<\/p>\n
20.\tThe
\npetition is accordingly  rejected. Notice discharged. There shall be
\nno order as to costs.\n<\/p>\n
21.\tAt
\nthis stage, the learned Advocate for the petitioner prays for staying
\noperation of the order of vacation of ad-interim relief  which is
\noperating since  03.04.2008 for a period of three weeks from today.
\nRequest is rejected in light of the facts and circumstances of the
\ncase.\n<\/p>\n
\t\t\t\tSd\/-\t\t\t\tSd\/-\n \n\n      \n         (D.A.Mehta,\nJ.)  (H.N.Devani, J.)\n \n\n \n\n\n \n\nM.M.BHATT\n\n    \n\n \n\t   \n      \n      \n\t    \n\t\t   \u00a0\u00a0\u00a0\n\t   \n      \n\t  \t    \n\t\t   Top\n\t   \n      \n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dhariyal vs Union on 11 July, 2008 Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print SCA\/5769\/2008 24\/ 24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5769 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd\/- HONOURABLE MS.JUSTICE H.N.DEVANI Sd\/- ========================================================= 1 Whether […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-219670","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDhariyal vs Union on 11 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dhariyal-vs-union-on-11-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dhariyal vs Union on 11 July, 2008 - 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