Judgment:
1. Shri Krishna Srinivas, the learned Counsel for the appellants at the outset submitted that the impugned order of the Collector of Central Excise, Madurai, dated 28-12-1990 is violative of the principles of natural justice and the same is vitiated and therefore prayed that after hearing the submissions, the Tribunal may be pleased to grant waiver of pre-deposit of duty and penalty and set aside the impugned order and remand the matter in the interest of justice.
2. Shri Krishna Srinivas, the learned Counsel submitted that the learned adjudicating authority passed the impugned order ex parte though on merits without affording the appellants adequate opportunity of hearing. It was submitted that the matter was posted for personal hearing on 7-8-1990 and consequent on the appellants' Consultant Sheik Ahmed proceeding on Haj Pilgrimage, and request for adjournment the personal hearing was fixed on 10-9-1990. Shri Sheik Ahmed by his letter dated 5-9-1990 requested for cross-examination of one Thankachan and on that ground sought adjournment of the personal hearing and the learned adjudicating authority fixed the personal hearing on 24-9-1990. But the matter had to be adjourned because the said Thankachan could not be present for cross-examination and expressed his inability to appear on 24-9-1990 and sought for fixing the personal hearing after 25-10-1990 and the hearing was fixed on 31-10-1990 for cross-examination. But the Consultant Sheik Ahmed could not appear on that day on grounds of illness and prayed for adjournment and the request of the Consultant for adjournment was rejected and the learned adjudicating authority has observed in para 55 of the impugned order that the learned Counsel ought to have brushed aside his personal inconveniences and made it convenient to attend the hearing on 31-10-1990. The learned Counsel submitted that the appellants' Consultant had gone to Bangalore to see his daughter and suddenly took ill and he was physically not in a position to travel and prayed for adjournment by sending a requisition with a Medical Certificate. When a Consultant aged about 69 years had suddenly taken ill and could not travel and sought for an adjournment on account of illness, rejection of the request for adjournment is neither proper nor just nor correct in law.
3. Shri V. Thyagaraj, the learned SDR adopted the reasoning of the adjudicating authority in the impugned order.
4. We have carefully considered the submissions before us. Since on going through the record and after hearing the submission the impugned order has to be set aside and the matter remanded for reconsideration, on grounds of violation of the principles of natural justice, by granting waiver of pre-deposit of duty and penalty, we take up the appeal for disposal.
5. The short issue for consideration in the appeal is whether the request for adjournment made on behalf of the appellant's Consultant Sheik Ahmed on the date fixed by the adjudicating authority i.e. on 31-10-1990 is just and proper or not. Records reveal the following facts : It would be seen from the impugned order, para 53 that appellants' Consultant Sheik Ahmed did not appear for the personal hearing before the adjudicating authority on 7-8-1990 and sought for adjournment on religious grounds i.e. proceeding on Haj Pilgrimage and the request was granted. When the matter was adjourned to 10-9-1990, the Consultant by his letter dated 5-9-1990 requested for cross-examination of one Thankachan and sought for adjournment of the personal hearing and the request was granted and the hearing was fixed for 24-9-1990 summoning the said Thankachan for cross-examination. The said Thankachan did not turn up on 24-9-1990 and requested for adjournment and the hearing was re-fixed on 12-10-1990. Again the said Thankachan did not turn up and requested for fixing the date after 25-10-1990 and the adjudicating authority fixed the personal hearing on 31-10-1990. Unfortunately, Sheik Ahmed, the Consultant of the appellants who had gone to Bangalore suddenly fell ill and was not in a position to travel and prayed for adjournment which was rejected. When a Consultant aged about 69 years had suddenly taken ill at Bangalore and was not a position to travel and sought for an adjournment on grounds of illness supported by a Medical Certificate, we are of the view that the request for adjournment was just and proper for unavoidable compelling reasons. Unfortunately the learned adjudicating authority ignored the illness and rejected the request for adjournment, by observing as under in para 55 of the impugned order : "At the same time, in my opinion, when a crucial witness summoned at the request of the Consultant, he ought to have brushed aside his personal inconveniences and made it convenient to attend the hearing on 31-10-1990".
We are afraid we are not able to agree with this observation of the learned adjudicating authority. Reference to earlier adjournments may not be relevant when the adjudicating authority had granted them. The crucial question is whether the request for adjournment from 31-10-1990 was for a valid, proper and just and sufficient reason or not. If a person suddenly takes ill and is physically not in a position to travel, such circumstances cannot be foreseen and therefore adjournment sought for was unavoidable or inevitable and the request for adjournment cannot be rejected. The letter of the Consultant seeking adjournment reads as under : "With reference to the above, I confirm to have sent a telegram to you as follows "REF V/4006/15/4/86-ADJ dated 12th instant (.) Quite ill (.) pray adjournment hearing (.) Consultant.
I have to state that after attending a personal hearing before the Collector, Appeals Tiruchi, on 23-10-1990, 1 proceeded to Bangalore on a domestic errand, that is to pay a visit to my daughter settled over there. There I fell ill badly and therefore am presently unable to travel.
In view of above, 1 regret my inability to attend the personal hearing slated on 31-10-1990. Therefore, I hereby request your goodself to adjourn to any later date".
His plea for adjournment is supported by Medical Certificate issued by Dr. R.R. Pangal (Reg. No. 10521) of IDEAL CLINIC Ganganagar, Bangalore-32, on 28-10-1990. The relevant portion of the certificate reads as under ; "This is to certify that Shri A. Sheik Ahmed aged 69 years is suffering from Influenza and is under my treatment for the same from 28-10-1990. He is advised to take rest for one week from 28-10-1990".
When adjournment has been sought for, for proper and valid reason rejection of the same was not just or proper. We are inclinded to think in the interests of justice, the impugned order has to be set aside and the matter remanded as the appellants did not have the opportunity to cross-examine the witness who had been summoned, who admittedly did not turn up more than once. It would be seen that it is not the case of the Department that the adjudicating authority had posted the matter for cross-examination as well as personal hearing. Even if the adjudicating authority has chosen to reject the plea for adjournment on 31-10-1990 the matter should have been posted for arguments. Rejecting the request for adjournment on 31-10-1990 and passing the impugned order on 28-12-1990 is neither proper nor just. Therefore, for the reasons stated above, we are of the view that the request of the Consultant for adjournment should have been granted since the same was on grounds of personal illness supported by a Medical Certificate. In this view of the matter, the impugned order is set aside and the matter remanded to the original authority for reconsideration of the issue in accordance with law.
6. I agree. I further observe that statements were recorded from Sh.
Thankachan on 29-6-1990 and the same was sent to Sh. Sheik Ahmed, the learned Consultant on 31-7-1990 and he was asked to come prepared for the personal hearing on 7-8-1990. Thereafter the hearing was adjourned from this date to 10-9-1990 for the reason that the learned Consultant was away on Haj pilgrimage. The next date of hearing was on 10-9-1990 and the learned Consultant by letter dated 5-9-1990 requested for the cross-examination of Sh. Thankachan and requested for the adjournment of the personal hearing which was adjourned to 24-9-1990. The learned Consultant sought for the adjournment from this date to 25-10-1990. The date of hearing therefore was fixed on 12-10-1990. Sh. Thankachan could not come on this date and he had requested for the hearing to be fixed on 25-10-1990. The hearing date therefore was fixed by the learned lower authority on 31-10-1990. The adjournment from this date was sought for the reason that the learned Consultant could not come from Bangalore owing to illness. It is seen from para 55 of the learned lower authority's order that Sh. Thankachan whose evidence has been relied upon had sought for adjournment postponing twice and he appeared on 31-10-1990. This was his first appearance so far as the appellants are concerned after his statement was recorded on 29-6-1990. While the convenience of Sh. Thankachan has been taken note of, the learned lower authority has ignored the fact that the learned Consultant was not able to come for the reason of sickness. While it is a fact that a number of adjournments had been sought for and allowed by the learned lower authority the fact remains that the evidence of Sh. Thankachan came on record on 29-6-1990 when a statement was recorded and the same was sent to the learned Consultant on 31-7-1990. From the narration of the facts of the learned lower authority it cannot be said that after that date the Consultant has sought for adjournments with a view to delay the process of adjudication. After his return from Haj on 5-9-1990 he had sought for the cross-examination of said Sh. Thankachan and the next date of hearing had to be postponed on account of the inability of Sh.
Thankachan to be present on that date. 31-10-1990 was his effective date of hearing for the cross-examination of Sh. Thankachan and the learned Consultant had sought for adjournment from this date only for the reason of illness.
7. In view of the above, we hold that one more adjournment could have been given to the learned Consultant before deciding the matter.
8. In view of the above, I hold that the learned lower authority's order had to be set aside by remand, as held by my learned Brother in his order recorded by him.