Gujarat High Court
M/S Sri Sai Vishwas Polymers vs Union Of India on 13 November, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
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C/SCA/4108/2025 JUDGMENT DATED: 13/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4108 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
√
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M/S SRI SAI VISHWAS POLYMERS
Versus
UNION OF INDIA & ORS.
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Appearance:
MR. BHARAT RAICHANDANI, ADVOCATE FOR MR. RITHIK JAIN(17523)
for the Petitioner(s) No. 1
MS. SHRUNJAL SHAH, AGP for the Respondent(s) No. 2
MR ANKIT SHAH, AGP for the Respondent(s) No. 1,4,5,6
MR UTKARSH R SHARMA(6157) for the Respondent(s) No. 3,7
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 13/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1 RULE. Learned advocates appearing for respective
parties, waives service of notice of rule on behalf of the
respondents.
2 Pursuant to the order dated 06.11.2025, learned
advocate Mr.Ankit Shah, for the respondent Nos.1,4,5 &6,
after perusal of the file has fairly submitted that they do not
have proof of delivery of the show-cause notice sent to the
petitioner.
3 Learned advocate Mr.Bharat Raichandani appearing for
the petitioner, has placed reliance on the judgement of this
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Court in the case of Regent Overseas Pvt Ltd vs. Union of
India, 2017 (6) G.S.T.L. 15 (Guj.), has submitted that the
impugned order may be quashed and set aside and the matter
may be remanded to the respondent authorities to decide it
afresh after giving hearing to the petitioner.
3.1 The petitioner in paragraph 4.15 of the writ petition has
categorically stated that the petitioner has not received any
communication regarding the impugned order passed by the
respondent No-3 till date. It is submitted that since the
petitioner never received any communication regarding any of
the personal hearing till date, hence they were unable to
remain present.
4 In view of the fair admission on behalf of learned
advocate Mr.Ankit Shah for respondent Nos.1,4,5 &6 after
perusing the file, since the notices calling upon the petitioner
has not been delivered to the petitioner, the same would be in
violation of provisions of Section 37(C) of the Central Excise
Act, 1944 and as such the orders are quashed and set aside.
5 At this stage, we may refer to the relevant paragraphs of
decision of the Co-ordinate Bench in the case of Regent
Overseas Pvt Ltd (supra), which reads s under:
"7. It may, therefore, be germane to refer to the provisions of
Section 37C of the Act, which provide for service of decisions,
orders, summons, etc. and reads thus:-
"37C. Service of decisions, orders, summons, etc. -
(1) Any decision or order passed or any summons or
notices issued under this Act or the rules made thereunder, shall
be served, -
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(a)by tendering the decision, order, summons or notice, or sending
it by registered post with acknowledgment due or by speed post
with proof of delivery or by courier approved by the Central Board
of Excise and Customs constituted under the Central Boards of
Revenue Act, 1963 (54 of 1963)], to the person for whom it is
intended or his authorised agent, if any:
(b)if the decision, order, summons or notice cannot be served in
the manner provided in clause (a), by affixing a copy thereof to
some conspicuous part of the factory or warehouse or other place
of business or usual place of residence of the person for whom
such decision, order, summons or notice, as the case may be, is
intended;
(c)if the decision, order, summons or notice cannot be served in the
manner provided in clauses (a) and (b), by affixing a copy thereof
on the notice board of the officer or authority who or which passed
such decision or order or issued such summons or notice.
(2) Every decision or order passed or any summons or notice
issued under this Act or the rules made thereunder, shall be
deemed to have been served on the date on which the decision,
order, summons or notice is tendered or delivered by post or
courier referred to in sub-section (1), or a copy thereof is affixed in
the manner
provided in sub-section (1)."
8. Thus, under clause (a) of sub-section (1) of section 37C of the
Act, in case of service of notice by speed post, the same has to be
with proof of delivery. To put it differently, service by speed post is
valid provided there is proof of delivery. In the present case, it is
an admitted position that the letter of personal hearing was sent to
the petitioners through speed post; however, though details of date
of despatch, etc. have been produced on record by the learned
counsel for the respondents, including tracking number, there is no
material by way of proof of delivery to the petitioners; whereas, on
the other hand, it is the specific case of the petitioners that they
have not received the notice for personal hearing. Thus, in view of
the mandate of section 37C of the Act, which provides for notice by
speed post with proof of delivery, it is incumbent upon the
respondents to furnish proof of delivery. In the absence of any
proof of delivery, it cannot be said that there is effective service of
notice, as contemplated under section 37C of the Act. In the
absence of service of notice of personal hearing, the petitioners or
their representative could not remain present before the
adjudicating authority during the course of personal hearing and
hence, the impugned order which has been passed ex parte is
clearly in breach of principles of natural justice.
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9. Another aspect of the matter is that by the notice of personal
hearing, the adjudicating authority has given a choice of three
dates of personal hearing as mentioned hereinabove. In view of the
fact that the petitioners or their representatives did not remain
present on any of the dates, the adjudicating authority has
proceeded further with the matter and has passed the order-in-
original ex parte. In this regard, reference may be made to section
33A of the Act, which reads thus:
"33A. Adjudication procedure. (1) The adjudicating authority
shall, in any proceeding under this Chapter or any other
provision of this Act, give an opportunity of being heard to a
party in a proceeding, if the party so desires.
(2) The Adjudicating authority may, if sufficient cause is
shown, at any stage of proceeding referred to in sub- section
(1), grant time, from time to time, to the parties or any of
them and adjourn the hearing for reasons to be
recorded in writing:
Provided that no such adjournment shall be granted more
than three times to a party during the proceeding."
10. Section 33A of the Act provides for giving an opportunity of
hearing to a party in a proceeding by the adjudicating authority.
Sub-section (2) thereof, provides for granting time to the parties
and for adjourning the hearing for reasons to be recorded in
writing. The proviso thereto circumscribes the power to grant time
conferred under sub-section (2) of section 33A of the Act, by
providing that no such adjournment shall be granted more than
three times to a party during the proceeding.
11. Thus, by virtue of the provisions of sub-section (2) of section
33A of the Act, when a personal hearing is fixed, it is open to a
party to seek time by showing sufficient cause and in such a case,
the adjudicating authority may grant time and adjourn the hearing
by recording the reasons in writing. However, in view of the
proviso thereto not more than three such adjournments can be
granted. On a plain reading of sub-section (2) of section 33A of the
Act and the proviso thereto, what the same envisages is fixing a
date of hearing and in case if a party asks for time and makes out
sufficient cause, then to adjourn the hearing. Since the number of
such adjournments is limited to three, the hearing would be
required to be fixed on each such occasion, and on every occasion
when time is sought and sufficient cause is made out, the case
would be adjourned to another day. However, the adjudicating
authority is required to give one date at a time and record his
reasons for granting adjournment on each occasion. It is not
permissible for the adjudicating authority to issue one consolidated
notice fixing three dates of hearing, whether or not the party asks
for time, as has been done in the present case. Thus, apart from
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the fact that the notice of hearing has not been served in the
manner contemplated under section 37C of the Act, the notice
itself suffers from a legal infirmity inasmuch as it fixes three dates
of hearing at a time, which is not in consonance with the proviso to
section 33A of the Act."
6 The impugned orders are hereby quashed and set aside.
The matter is restored to its original status on file before the
Adjudicating Authority to decide the same in accordance with
law after affording adequate opportunity of hearing to the
petitioner. The entire exercise shall be undertaken and
completed within a period of twelve weeks from the date of
receipt of copy of this order. Rule is made absolute to the
above extent.
(A. S. SUPEHIA, J)
(PRANAV TRIVEDI,J)
BIMAL/ 10
