Madras High Court
T.M.Hotels Private Limited vs The Additional Commissioner Of ... on 6 July, 2021
W.P.No.14099 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.14099 of 2014
and
M.P.No.1 of 2014
T.M.Hotels Private Limited,
Rep. By its Managing Director
Mr.T.Murugesan,
No.48A, Mettur Street,
Kancheepuram – 631 501. .. Petitioner
-vs-
The Additional Commissioner of Central Excise,
Office of the Commissioner of Central Excise,
Chennai III Commissionerate,
26/1, Mahatma Gandhi Road,
Chennai – 600 034. .. Respondent
Petition filed under Article 226 of the Constitution of India, praying
for issuance of Writ of Certiorari calling for the records of the respondent in
C.No.V/15/BSS/2013-ADC-STA-III in Order in Original No.11/2014 (ST)
dated 10.04.2014 passed by the respondent and to quash the same as
arbitrary and illegal.
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W.P.No.14099 of 2014
For Petitioner : Mr.Joseph Prabakar
For Respondent : M/s.R.Hemalatha
Senior Standing Counsel
ORDER
The Order in Original passed by the respondent in proceedings dated
10.04.2014 is under challenge in the present writ petition.
2.The issue raised in nutshell is that the impugned order was passed
without providing personal hearing to the learned counsel who represented
the case of the petitioner.
3.The learned counsel for the petitioner made a submission that he
entered appearance in the proceedings by filing vakalat nama on
04.03.2014. After filing of vakalat nama, the summons ought to have been
sent to the counsel who was representing the case of the petitioner.
Contrarily, the respondent sent summons to the petitioner directly and the
petitioner was under the bonafide impression that the learned counsel will
take care of the matter by appearing and defending their case. However, the
learned counsel for the petitioner was not aware of the summons as well as
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W.P.No.14099 of 2014
the date of personal hearing and not appeared which resulted in passing of
the final order without providing opportunity to the petitioner.
4.The learned Senior Standing Counsel appearing on behalf of the
respondent refer to Section 37C of the Central Excise Act, 1944 which
stipulates Service of decisions, orders, summons, etc. Sub-clause (1)(a)
enumerates that “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 to the person for whom it is intended or his authorised agent, if any ”.
Relying on the above provisions of the Central Excise Act, the learned
Senior Standing Counsel reiterated that summons are to be issued either to
the person intended or his authorized agent. In the present case, the
summon admittedly was issued to the petitioner and it is his duty to inform
the date of personal hearing to his counsel who is appearing in the matter
and therefore, the respondent cannot be faulted for the lapses committed by
the petitioner.
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W.P.No.14099 of 2014
5.The learned Senior Standing Counsel is of the opinion that the
matter was adjourned thrice and the impugned order itself would reveal that
personal hearing was provided on three occasions on 09.02.2014,
04.03.2014 and 25.03.2014 and the assessee did not turn up and therefore,
the competent authority passed the assessment order. Thus, there is no
infirmity as such in respect of the order passed and if at all, the petitioner is
aggrieved, he has to prefer an appeal.
6.The learned counsel for the petitioner, in reply, submitted that the
issues are covered under the judgment of this Court and if an opportunity is
provided, the learned counsel for the petitioner would have represented the
case and submitted all the judgments as well as the grounds raised on behalf
of the petitioner. In view of the fact that no opportunity was provided, the
issues are decided against the petitioner and thus, an opportunity is to be
provided by remanding the matter back.
7.This Court is of the considered opinion that in all circumstances,
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W.P.No.14099 of 2014
the parties aggrieved are bound to prefer an appeal before the appellate
authority. However, in certain circumstances, the Courts are bound to
consider whether the denial of opportunity caused certain prejudice to the
interest of the person aggrieved. In the present case, admittedly, the
summons were issued to the petitioner. However, the learned counsel for
the petitioner entered appearance in the proceedings before the respondent
on 04.03.2014 itself. Thus, there is a possibility that the petitioner would
not have informed about the summons to their counsel regarding the
personal hearing. Under those circumstances, the counsel was not aware of
the date of personal hearing and the same resulted in passing of the final
order without hearing the learned counsel who entered appearance on behalf
of the writ petitioner.
8.In paragraphs 5 and 6 of the affidavit filed in support of the writ
petition, the petitioner has stated as follows:
“5.In the meanwhile, the petitioner decided to
engage the services of a legal counsel to appear before
the respondent and make submissions on behalf of the
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W.P.No.14099 of 2014
petitioner. Accordingly, the petitioner engaged the
services of Mr.Joseph Prabakar, Advocate, No.51A,
Dr.Ranga Road, Mylapore, Chennai – 600 004. In order
to enable Mr.Joseph Prabakar, Advocate to appear before
the respondent for the personal hearing, vakalatnama in
favour of Mr.Joseph Prabakar, Advocate was given. This
Vakalatnama was filed by the petitioner and the same was
received and duly acknowledged by the respondent. The
petitioner received notice of personal hearing on March
4, 2014 and the petitioner informed the legal counsel
about the same. The legal counsel of the petitioner then
approached the respondent office and submitted a letter
seeking adjournment.
6.Thereafter, the respondent sent a notice of
personal hearing to the petitioner fixing the date of
personal hearing as March 25, 2014. The petitioner was
under the impression that the legal counsel would have
received the notice and would therefore attend the
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W.P.No.14099 of 2014
personal hearing on March 25, 2014 and make
submissions on their behalf. However the notice calling
for personal hearing on March 25, 2014 was not sent to
the legal counsel for the petitioner. Therefore, the legal
counsel could not attend the personal hearing on March
25, 2014.”
9.In view of the said submission, this Court is of an opinion that the
petitioner has to be provided with an opportunity of personal hearing for the
purpose of submitting the judgments, documents and the grounds raised to
defend their case. Accordingly, the impugned order passed by the
respondent in proceedings No. C.No.V/15/BSS/2013-ADC-STA-III in
Order in Original No.11/2014 (ST) dated 10.04.2014 is quashed and the
matter is remanded back to the respondent for fresh consideration after
providing an opportunity to the learned counsel who entered appearance on
behalf of the petitioner and thereafter pass final orders on merits and in
accordance with law as expeditiously as possible. Such exercise is directed
to be done within a period of four months from the date of receipt of a copy
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W.P.No.14099 of 2014
of this Order. The learned counsel for the petitioner is directed to co-
operate for the early disposal of the proceedings by the respondent without
seeking for unnecessary adjournments.
10.With these observations, this writ petition stands disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
06.07.2021
Index : Yes/No
Speaking/Non-Speaking Order
cse
To
The Additional Commissioner of Central Excise,
Office of the Commissioner of Central Excise,
Chennai III Commissionerate,
26/1, Mahatma Gandhi Road,
Chennai – 600 034.
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W.P.No.14099 of 2014
S.M.SUBRAMANIAM, J.
cse
W.P.No.14099 of 2014
06.07.2021
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