K K Vohra vs Union Of India & Ors.
2010 Latest Caselaw 2315 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment Reserved on: 26.04.2010
                                         Judgment Delivered on: 30.04.2010

+            WP.(C).1676/2010

A K NIJHAWAN                                               ... Petitioner

                                         - versus -

UNION OF INDIA & ORS.                                      ... Respondents

+            WP.(C).1678/2010

K K VOHRA                                                  ... Petitioner

                                         - versus -

UNION OF INDIA & ORS.                                      ... Respondents

+            WP.(C).1679/2010

K K VOHRA                                                  ... Petitioner

                                         - versus -

UNION OF INDIA & ORS.                                      ... Respondents

+            WP.(C).1688/2010

B B GOEL                                                  ... Petitioner

                                         - versus -

UNION OF INDIA & ORS.                                      ... Respondents

+            WP.(C).1697/2010

K K VOHRA                                                  ... Petitioner

                                         - versus -

UNION OF INDIA & ORS.                                      ... Respondents

Advocates who appeared in this case:
For the Petitioners : Mr C Harishanker, & Mr.S.Sunil
For the Respondents : Mr Roshan Lal Goel & Mr.Mukesh Anand




WP(C )Nos.1676/10,1678/10,1679/10,1688/10,1697/10                         Page 1 of 6
 CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

     1.    Whether Reporters of local papers may be allowed to
           see the judgment?                                                         Yes
     2.    To be referred to the Reporter or not?                                    Yes

     3.    Whether the judgment should be reported in Digest?                        Yes

V.K. JAIN, J.

1. By this common order, we shall dispose of all the five

writ petitions referred above, which involve identical questions

of fact and law.

2. The petitioners are officers of the Customs

Department. Show-cause notices were issued to the

petitioners by the Directorate of Revenue Intelligence, requiring

them to show cause as to why penal action under the

provisions of Customs Act, 1962 be not taken against them.

Vide Order - in - Original No.04/GS/CC/DRI/NCH/2007 dated

12.3.2007, Shri Gurbans Singh, Commissioner of Central

Excise(Adjudication), decided not to impose penalty on Shri

A.K.Nijhawan, petitioner in WP.(C).1676/2010 and Shri

K.K.Vohra, petitioner in WP(C).1678/2010. Vide Order - in -

Original No.12/GS/CC/DRI /NCH/06 dated 22.12.2006,

Shri Gurbans Singh decided not to impose penalty on Shri

B.B.Goel, petitioner in WP.(C).1688/2010. Vide Order - in -

Original No.11/GS/CC/DRI/ NCH/ 06 dated 22.12.2006,

which pertains to WP.(C).1697/2010, Shri Gurbans Singh,

decided not to impose penalty on Shri K.K.Vohra. Vide Order

- in - Original No.10/GS/CC/DRI/NCH/06 dated 22.12.2006,

which pertains to WP.(C).1679/2010, he decided not to impose

penalty on Shri K.K.Vohra.

3. Appeals were filed by the Commissioner of Customs

before the Customs, Excise & Service Tax Appellate Tribunal,

challenging the orders passed by Commissioner of Central

Excise(Adjudication) thereby deciding not to impose penalty

upon the petitioners. A perusal of all the copies of appeals

filed in WP.(C).1676/2010, WP.(C).1678/2010,

WP.(C).1697/2010 & WP.(C).1679/2010 would show that the

appeals were directed only against the customs officers and the

only prayer made in the appeals was seeking orders from the

CESTAT, imposing penalty on the Customs Officers. The

names of the Customs Officers were, however, not shown as

respondents in the Form annexed to the appeal and only the

concerned exporter was shown as respondent. The address at

which notice was to be sent to the respondent was the address

of the exporter and not of the Customs Officers. Though Shri

B.B.Goel, petitioner in WP.(C).1688/2010 has not filed a copy

of the appeal of the Department in his case, we presume that

the appeal filed against him was identical to the appeals filed

against other petitioners.

4. The Tribunal vide Order dated 18.6.2009, remanded

all the appeals filed by the Department against Customs

Officers to the Adjudicating Authority for de novo proceedings,

after noticing that none of the respondents was present. In the

order passed by the Tribunal, the exporters were shown as

respondents. None of the Customs Officers was shown as a

respondent in the order passed by the Tribunal.

5. In the counter-affidavit filed by the respondents, it

has been admitted that the petitioners were not made

respondents in the appeals filed before CESTAT and no notice

was sent to them by the Tribunal.

6. Since the prayer made in the appeals was directed

only against the Customs Officers, it cannot be disputed that

the appeals were directed only against them. It was, however,

obligatory on the part of the respondents to show the name of

the petitioners as respondents against the column of

respondent in the Form annexed to the appeal. Had the

respondents done so, the Tribunal would obviously have issued

notice to the petitioners instead of issuing the same to the

concerned exporter. As noted earlier, Commissioner of

Customs(Adjudication), Shri Gurbans Singh had passed an

order favourable to the petitioners by deciding not to impose

any penalty upon them. The order passed by him, to the

extent he decided not to impose any penalty on the petitioners,

could not have been set aside and the matter could not have

been remanded back to the Adjudicating Authority for de novo

proceedings, without issuing notice to the petitioners and

without giving an opportunity of hearing to them. As a result

of no notice and no opportunity of hearing having been given to

the petitioners, they have been denied an opportunity to

contest the appeal filed by the Department and to present their

case before the Tribunal. The order passed by the Tribunal

being violative of the principles of natural justice and having

been passed at the back of the petitioners without serving any

notice upon them and without giving any opportunity of

hearing to them is, therefore, liable to be set aside to the extent

it relates to the present petitioners. As a necessary

consequence, the fresh order passed by the respondent No.2 in

de novo proceedings conducted by him, pursuant to the order

of the Tribunal dated 18.6.2009, is also liable to be set aside,

to the extent it pertains to the petitioners.

7. For the reasons given in the preceding paragraphs,

the impugned order dated 18.6.2009 passed by the Tribunal as

well as the impugned orders dated 21.12.2009 passed by

respondent No.2, to the extent they impose penalty upon the

petitioners, are hereby set aside. The Tribunal is directed to

pass fresh order in the appeals of the Department against the

petitioners, after giving opportunity of hearing to the parties.

The parties are directed to appear before the Tribunal on 17th

May, 2010 in the first instance. No further notice would be

necessary for their participation in the said appeals. All the

five writ petitions stand disposed of.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE APRIL 30, 2010 RS/