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Judgment
This is a writ petition for the issue of a writ of certiorarified mandamus to quash the orders of the second respondent passed in A. No. 5/94
(Order in Appeal No. 14 of 1994), dated 8-4-1994, setting aside the order of the first respondent passed in C. No. IV/60/50/91 (Order in
Appeal No. 6 of 1993), dated 22-4-1993.
Briefly stated the facts leading to the writ petition are :
The petitioners are manufacturers of Phthalic Anhydride and Maleic Anhydride under Chapter 2917.90 of the Central Excise Tariff Act, 1985.
The goods of the petitioners fall under the Modvat Scheme introduced with effect from 1st March, 1986 with a view to remove the cascading
effect of duty payment on final products. The petitioners declared Marlotherm falling under Chapter 3823 of the Central Excise Tariff Act, 1985 as
an input and availed duty credit for utilisation of the same against Phthalic Anhydride and Maleic Anhydride. A show cause notice came to be
issued to the first respondent on 17-1-1991 in O.C. No. 80 of 1991 as to why credit on Marlotherm should not be denied on the ground that the
same is not an input, as it is not used in the manufacture of the final products. The petitioners were importing Marlotherm and the countervailing
duty paid was availed as credit. The petitioners having given reply to the said show cause notice, attended personal hearing on 19-8-1992. After
considering the written submissions, documents and evidence, the first respondent passed an order dated 22-4-1993 dropping the further
proceedings and thereby permitted the petitioners to avail Modvat credit on Marlotherm. The Collector of Central Excise, exercising power u/s
35E(2) of the Central Excises and Salt Act, 1944 (for short, ''the Act''), reviewed the order dated 22-4-1993 passed by the first respondent and
directed the first respondent to apply to the second respondent. Accordingly, an application was made to the second respondent by the first
respondent against his own order, dated 22-4-1993 in Appeal No. 5/94(M)(D). A copy of the said Appeal Memorandum was served on the
petitioners on 15-1-1994, inviting to file cross-objections, if any. Since the entire proceedings initiated through the show cause notice dated 17-1-
1991 were dropped by the first respondent, by his order dated 22-4-1993, as stated above, the petitioners did not file any cross-objections, as
contemplated u/s 35B(4) of the Act. However, the petitioners were expecting a notice for personal hearing from the office of the second
respondent in the Appeal to defend their case. But the petitioners were shocked to know that the second respondent disposed of the Appeal on 8-
4-1994 filed by the first respondent in Appeal No. 5 of 1994, allowing it. In paragraph 3 of the Order passed in the said Appeal, it is stated that
the petitioners neither filed any memorandum of cross-objection nor sought personal hearing and that therefore the second respondent decide the
Appeal based on the available records. Thereafter the petitioners moved for recalling the Order dated 8-4-1994 passed ex parte by the second
respondent, contending that there was no need to file any cross-objections as per Section 35B(4) of the Act, as the entire order passed by the first
respondent, dropping the proceedings initiated on the show cause notice dated 17-1-1991 were dropped [sic] and that there was no need to seek
a personal hearing by the respondents in the Appeal. According to the petitioners, a request for personal hearing is to be made only by an
appellant u/s 35A(1) of the Act. In other words, according to the petitioners, neither Section 35A(1) of the Act nor Section 35B(4) of the Act
were applicable to the facts of the case and the second respondent ought to have given personal hearing before passing the order in the Appeal as
the order passed ex parte was clearly in violation of the principles of natural justice. The miscellaneous application filed by the petitioners for
recalling the order dated 8-4-1994 passed in the said Appeal and for restoration of the status quo prior to the passing of order in Appeal No. 14
of 1994 (M)(D) was also not conceded to by the second respondent on 23-5-1994, without granting personal hearing, reiterating the reasons
stated in paragraph 3 of the original order passed in the Appeal, and adding that the second respondent was not vested with any power to recall
the orders passed or for restoring the appeal to the original file. Under these circumstances, this writ petition is filed contending that the second
respondent has passed the orders dated 8-4-1994 and 23-5-1994 in gross violation of the principles of natural justice; the Act nowhere
contemplates seeking of personal hearing by the respondent in Appeal. When the cross-objections were not required to be filed u/s 35B(4) of the
Act and when the petitioners did not file any Appeal u/s 35A(1) of the Act, the question of their seeking personal hearing in the Appeal filed by the
first respondent did not arise. The second respondent ought to have given an opportunity of personal hearing, which is a basic requirement in a
quasi-judicial proceeding. The second respondent without proper consideration of the material on record has passed an adverse order, affecting
the rights of the petitioners and that too without hearing them.
Mr. N.V. Venkataraman, learned counsel for the petitioners urged :
(i) When the entire proceedings initiated by the show cause notice dated 17-1-1991 in O.C. No. 80 of 1991 seeking to deny the credit on
Marlotherm were dropped by the first respondent on being satisfied that the Marlotherm was an input used in the manufacture of the final products,
there was no need or occasion for the petitioners either to file an Appeal u/s 35A(1) of the Act or cross-objections u/s 35B(4) of the Act and seek
for the opportunity of personal hearing :
and
(ii) Since the order impugned in this writ petition passed by the second respondent is in gross violation of the principles of natural justice, on an
incorrect and untenable interpretation of the provisions on the face of it, the petitioners need not be driven to avail of the alternative remedy.
Mr. K. Jayachandran, learned Additional Central Government Standing Counsel, argued in support and justification of the impugned orders. He
contended on the basis of the statements made in paragraph 3 of the impugned order dated 8-4-1994 that the petitioner did not avail of the
opportunity given to it, in as much as the second respondent issued a notice dated 11-1-1994 stating that an Appeal was filed by the first
respondent, as per the directions given by the Collector of Central Excise, Madras in terms of Section 35E(2) of the Act against the order dated
22-4-1993 passed by the first respondent, and the petitioner was requested to submit a memorandum of cross-objections, if any, within a period
of forty-five days, and also to state whether it wished to be heard in person before a decision was taken in the Appeal. But the petitioner neither
filed cross-objections nor sought personal hearing.
(2) The petitioners have an alternative and efficacious remedy to challenge the impugned order passed by the second respondent. Hence, the writ
petition is not to be entertained.
In order to appreciate the respective contentions of the parties relating to the controversies raised, I consider it appropriate to extract the
relevant provisions of the Act so far as they are considered necessary.
Section 35A. Procedure in Appeal
(1) The Collector (Appeals) shall give an opportunity to the appellant to be heard, if he so desires.
(2) ...........
(3) The Collector (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or
annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for
a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary;
Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund
shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order;
....................
(4) The order of the Collector (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon
and the reasons for the decision.
(5) ..........
35B. Appeals to the Appellate Tribunal :
(1) ..........
(2) ..........
(3) ..........
(4) On receipt of notice that an appeal has been preferred under this Section, the party against whom the appeal has been preferred may,
notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a
memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be
disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).
(5) ..........
(6) ..........
35C. Orders of Appellate Tribunal
(1) The Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit,
confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or
order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional
evidence, if necessary;
(2) ..........
(3) ............
(4) ...........
35D. Procedure of Appellate Tribunal :
(1) ............
(2) ...........
(3) ...........
35E. Powers of Board or Collector of Central Excise to pass certain orders :
(1) ............
(2) The Collector of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority
subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such
decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising lout of
the decision or orders as may be specified by the Collector of Central Excise in his order :
(3) .............
(4) Where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or the authorised officer makes an
application to the Appellate Tribunal or the Collector (Appeals) within a period of three months from the date of communication of the order under
sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Collector
(Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the
provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35B shall, so far as may be apply to such
application.
(5) ...........
..........................
In view of the submissions of the learned counsel for the parties, the two points that arise for consideration are :-
(i) Whether for want of personal hearing the impugned order passed by the second respondent is sustainable on the ground that it is passed in
violation of the principles of natural justice.
(ii) On the undisputed facts and circumstances of the case, whether the petitioner should be driven to avail the alternative remedy to challenge the
impugned order.
The facts narrated above are not disputed. The petitioner had fully succeeded before the first respondent in as much as the proceedings initiated by
the issue of show cause notice dated 17-1-1991 in O.C. No. 80/91 were dropped in entirety by the order of the first respondent dated 22-4-
1993. Hence the petitioner had no reason or cause to file an appeal against the said order u/s 35 or to file cross-objections u/s 35B(4) of the Act.
Section 35A(1) provides opportunity of hearing to the appellant, if he so desires. Section 35B(4) enables a party against whom the appeal is filed
to provide cross-objections even though he may not have appealed against such an order. Since the petitioner was not aggrieved by any part of the
order dated 22-4-1993, availing the opportunity of hearing u/s 35A(1) or 35B(4) did not arise. As there was no need to file appeal or cross-
objections and as a matter of fact also the petitioner neither filed appeal nor cross-objections.
6A. The argument of the learned counsel for the respondents that the petitioner did not avail the opportunity given to him by the notice dated 11-1-
1994 issued by the second respondent in as much as response to the said notice, the petitioner did not express its desire to give a personal hearing.
The plain and clear language of Section 35B(4) shows the personal hearing stated therein is pursuant to availing of cross-objections. In this regard,
the learned counsel placed reliance on S.V.M. Syed Cassim Vs. Collector of Central Excise, Madras, to contend that the petitioner having failed
to avail the opportunity given to him cannot complain that the refusal to grant the personal hearing was unreasonable. In my view, the said decision
does not help the respondents for reasons more than one. That was a case relating to the order passed u/s 167 of Seas Customs Act for
confiscation and imposition of fine, which section is not akin to Section 35A(1) or 35B(4) of the Act; in that case, request was made by a party
after the time allowed to make representation in the show cause notice had expired. It was the case where the petitioner was asked if he desires to
be heard in person in his defence. Section 35A(3) states that the Collector (Appeals) may, after making such further inquiry as may be necessary,
pass such order as he thinks fit. Under the said provision, he could even take additional evidence, if necessary. The provisos to Section 35A(3)
indicate that no adverse order could be passed without asking show cause against passing such an order. Section 35C(1) states that the Appellate
Tribunal may after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. In Section 35E(4) it is
stated where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or the authorised officer makes an
application to the Appellate Tribunal or the Collector (Appeals), such application shall be heard by the Appellate Tribunal or the Collector
(Appeals), as the case may be and the provisions of the Act regarding appeals, including the provisions of sub-section (4) of Section 35B so far as
they may be applied to such application. In the case on hand, the application was made u/s 35E(2) to the Collector (Appeals). As stated above,
Section 35C(1) speaks of giving the parties the opportunity of being heard. Section 35E(4) clearly states the provisions of the Act regarding
appeals are attracted. It is not a particular provision of the Act regarding the appeals but all the provisions regarding the appeals are to be kept in
view. Thus a combined reading of Sections 35A(1) and (3), 35B(4), 35C(1) and Section 35E(4) suggest that the opportunity of hearing is to be
given in a case like the one on hand. This apart the opportunity of hearing under the provisions of the Act is not expressly or by inevitable
implication is excluded.
In Union of India v. Col. J. N. Sinha 1971 SCJ 655 the Supreme Court, in para 8 has stated thus :
Fundamental Rule 56(j) in terms does not require that any opportunity should be given to the concerned government servant to show cause
against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as
provided in Article 310 of the Constitution. But this ""pleasure"" doctrine is subject to the rules or law made under Article 309 as well as to the
conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental
rights. As observed by this court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, the aim of rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage of justice. The rules can operate only in areas not covered by any law validly made. In other
words they do not supplant the law but supplement it."" It is true that if a statutory provision can be read consistently with the principles of natural
justice, the Courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the
principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of
any or all the rules or principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into
the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the
principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the
purpose for which it is conferred and the effect of the exercise of that power.
In the case on Institute of Chartered Accountants of India Vs. L.K. Ratna and Others, , the Supreme Court as can be seen from para 16, has held
that the principles of natural justice must be read into the unoccupied interstices of the statute unless there is a clear mandate to the contrary.
The Division Bench of this Court in Workmen of KEMPF (India) Ltd. v. The Government of Tamil Nadu 19911 L.W. 440, in paragraph 9, has
expressed thus :
Even otherwise, one principle which is now well settled and established, by a catena of authorities is that even if the statue is silent with regard to
the grant of hearing to the person affected, then at least a minimal hearing is necessary, and not only desirable, to avoid the charge of arbitrariness.
The observance of the principles of natural justice is the pragmatic requirements of fair play in action. The purpose of following the principles of
natural justice is basically the prevention of miscarriage of justice. The rules of natural justice operate as implied mandatory processual
requirements, non-observance whereof invalidates the exercise of power of court. The content of application of principle of natural justice is the
dependent variable, conditioned by the facts and circumstances of each situation and even where, in the statute, there are no positive words
requiring that the party shall be heard, even then, as laid down by the apex court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another,
the justice of common law would supply the omission of the legislature and the principles of natural justice shall be read into the statute, so as to
ensure a just decision. The rule of audi alteram partem is devised to ensure a just decision and is a healthy check on the abuse or misuse of power
and the courts in this country have been very jealous to see that is reach and applicability is not allowed to be unnecessarily circumscribed. There
cannot be indeed, any undue expansion of the principles of natural justice without reference to the administrative realities and other factor, but the
fact, remains that it is ""untenable heresy to lock-jaw the victim or act behind his back"" by tempting invocations.
Having regard to the long line of decisions, I am of the firm view that in cases where the requirement of hearing between the contending parties,
having competing interests is dispensed with expressly or by necessary implication the principles of natural justice demand that the authorities,
exercising judicial or quasi-judicial function are required to give an opportunity of hearing. More so, when the orders are passed affecting the rights
of the parties resulting in civil consequences. In the instant case, it is plain that the impugned order was passed without giving opportunity of hearing
to the petitioner that too affecting its rights in as much as the order passed by the first respondent in its favour is reversed by the second respondent
by the impugned order. Having regard to the provisions of the Act and keeping in view the principles laid down in decisions aforementioned, I
conclude that the impugned order was passed in violation of principles of natural justice. An order passed in violation of principles of natural justice
stands vitiated without anything more as it is passed without hearing the petitioner, taking away the advantage that he had by virtue of the order
dated 22-4-1993 passed by the first respondent which has visited the petitioner with civil consequences.
As regards the second question as to whether the petitioner should be driven to other forum to avail alternative remedy of filing appeal, I must
state that it is not necessary, in this case having regard to the undisputed facts and position of law. It is firmly settled law that mere existence of an
alternative remedy is no bar to entertain a writ petition and give relief under Article 226 of the Constitution of India, although the courts will be slow
in entertaining writ petitions, where parties have alternative remedy and unless they exhaust such remedy. But the rule that the party should exhaust
statutory remedy before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law. In cases where the
principles of natural justice are denied or violated, the superior court will readily issue a writ of certiorari. Para 11, in the case of U.P. State v.
Mohd. Nooh AIR 1958 SC 86 reads thus :
On the authorities referred to above it appears to us that there may conceivably be cases - and the instant case is in point - where the error,
irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent & loudly obtrusive
that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or
Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a
manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior courts sense of fair play
the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or
Tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had
to it, it confined what ex facie was a nullity for reasons aforementioned. This would be so all the move if the tribunals holding the original trial and
the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy
without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily
decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and
should exercise it. We say no more than that.
In the light of what is stated above, when the impugned order is one passed clearly in violation of principle of natural justice as well this court
should not only entertain the writ petition and give relief to the petitioner but it has a duty to do so. Accordingly I am of the opinion that the
petitioner need not be asked to avail the alternative remedy.
One more submission of the learned counsel for the petitioner that in the event this court comes to the conclusion that the impugned order is not
sustainable, the matter may be sent back to the first respondent who will be in a better position to appreciate the entire materials on record, being
the original authority and pass appropriate orders. This submission is opposed by the learned counsel for the respondents stating in such an event,
the second respondent also can consider the entire material on record having the power even to hold further enquiry and to record additional
evidence, if necessary and pass appropriate orders on merits and in accordance with law. I am inclined to accept the submission made by the
learned counsel for the respondents in this regard.
In the result, for the reasons stated and discussion made above, I pass the following order :
(i) The writ petition is allowed.
(ii) The impugned order of the second respondent dated 8-4-1994 passed in A. No. 5/94 (Order in Appeal 14/94) is quashed.
(iii) The case is remitted to the second respondent for fresh disposal on merits and in accordance with law after affording an opportunity of hearing
to the petitioner.
No Costs.