ORDER
D.A. Mehta, J.
1. Heard Mr. P.M. Dave, learned Advocate for the petitioner. Notice returnable today. Mr. Jitendra Malkan waives service on behalf of the respondents. With the consent of the parties the petition is taken up for hearing and disposal at the admission stage today.
2. This petition primarily challenges Show Cause Notices (i) Bearing F. No. V.23/15-31/Dem/OA/2005-06, dated 31-8-2005 issued by Commissioner of Central Excise, (ii) Bearing F. No. V.23/3-7/SCN/05-06, dated 29-9-2005 issued by Assistant Commissioner of Central Excise, Mehsana and, (iii) Bearing F. No. V.23/3-36/SCN/05-06, dated 21-11-2005 issued by Commissioner of Central Excise, Kalol.
3. When the matter came up for hearing on 23-1-2006 the learned Advocate for the petitioners was orally directed by the Court to approach the Commissioner of Central Excise and the matter was adjourned to 30-1-2006. The grievance of the petitioner was that the Commissioner had already made up his mind and was not inclined to grant a proper hearing to the petitioners, and hence, the learned Counsel appearing for Union of India on an advance copy was orally directed by the Court to convey to the Commissioner not to pass any order without hearing the petitioners.
4. When the matter came up for hearing on 30-1-2006 the learned Advocate for the petitioners placed on record Order-In-Original No. 03/COMMR/06, dated 25-1-2006. Hence, the Court called upon the learned Counsel for the respondents to explain as to how the said order was passed without hearing the petitioners and Mr. Malkan prayed for time 'to advise the Commissioner to recall the order made on 25-1-2006'.
5. Today Mr. Malkan has placed on record communication dated 31-1-2006 addressed by the Commissioner to Mr. Malkan and the first paragraph of the said communication records that the Commissioner was not informed personally and his Personal Assistant also did not receive any message because of recess hours. In the said communication the Commissioner has expressed his inability to recall the order under the specious plea that he does not have any powers to do so.
6. It is an incorrect statement made by the Commissioner. If the order is passed in violation of principles of natural justice the authority can always recall such order to grant an opportunity of hearing to the petitioners. As can be seen from communication dated 23-1-2006 addressed by the learned Advocate of the petitioners to the Commissioner, in the last paragraph, a specific request is made that in the event Commissioner was not inclined to keep the adjudication of the notices in abeyance, then, the petitioners may be informed accordingly and further personal hearing may be granted before deciding the impugned notices. As can be seen from order dated 25-1-2006 made by the Commissioner he has not only failed to consider the said request, but has reiterated the factum of having granted hearing on 19-1-2006, and this fact is repeated in his communication dated 31-1-2006. Therefore, in the interest of justice, if the Commissioner feels that he has committed an apparent error, as the facts reveal, it is always open to him to recall the order and grant a reasonable opportunity of hearing and then pass the order. The Court hopes that the Commissioner exercises his discretion judiciously.
7. However, in the meantime it will be open to the petitioners to challenge the said order by availing the statutory remedy if the petitioners are so advised. In the event of the petitioners challenging the said order, or in the event of order being recalled by the Commissioner, in any eventuality, the remaining two Show Cause Notices dated 29-9-2005 issued by Assistant Commissioner of Central Excise, Mehsana and 21-11-2005 issued by Assistant Commissioner of Central Excise, Kalol shall be adjudicated upon by the respective authorities subject to the following:
After the process of adjudication is over the authority shall frame the adjudication orders in accordance with law but the orders shall not be served on the petitioners nor any demand in pursuance of such orders be raised against the petitioners till the outcome of the Appeal which is already pending before Central Excise Service Tax Appellate Tribunal, West Zonal Bench, Mumbai.
8. At this stage, Mr. P.M. Dave, learned Advocate for the petitioners seeks permission to withdraw the petition in the circumstances. Permission granted. The petition stands disposed of accordingly. Notice discharged.