Full Judgment
2. The ld. Advocate submits that the Notice for listing the matter for hearing on 21-7-1986 was served on them on 17-7-1986, and on the next day i.e. 18th the Advocate on record went to the Office of Collector and because, the Collector was not available, submitted an application for adjournment in the Office. However as a precaution, on 21-7-1986 one Junior Advocate was sent to the Office of Collector for ensuring that the adjournment was granted. The ld. Collector insisted on the said Junior Advocate to argue the matter, and because he was so compelled, he read out what was written in the reply to the Show Cause Notice. The ld. Advocate submits that in reply to the Show Cause Notice they had also asked for the Cross-Examination of the witnesses, as the entire issue under-consideration depend upon the factual position. The issue was of clubbing of two units so as to bring M/s. R.R. Windal within the perview of the same being a factory, and thereby deny the exemption available under Notification No. 46/81. In the submission of the ld. Advocate, the Collector has taken the reading of the reply to the Show Cause Notice by the Advocate who was not holding Vakalatnama for the appellant, as the submissions made by him on behalf of the appellants and has come to a decision on merits, further observing that the aspect high lighted against the Appellants, have not been properly clarified and no explanation was available. The ld. Advocates submits that therefore the matter ought to go back to the adjudicating authority for granting proper hearing, as such submissions made by the Advocate not holding proper authorization, could not be taken as submissions by the party.
3. Shri Gurdeep Singh, the ld. JDR however invites our attention to the Order No. 42/87-WRB, dated 6-5-1987 passed on the application for grant of Stay and waiver and has observed that the Bench while dealing with the matter, has categorically held that the submissions about non compliance with the principle of natural justice by the Collector, are not convincing. In his submission this tentamounts to giving a decision, so far as the non compliance with the principle of natural justice concerned, and at this stage the said finding cannot be reviewed. He also pleads that even on merits, the Collector has examined all these aspects pleaded and hence, there is no cause for ordering remand of the matter.
4. Considering the submissions, and going through the records it appears that Mr. Vivek Sharma the Advocate who is reported to have made the submissions, was not the Advocate appointed by the party and he was holding the brief for the Advocate on record. It is undisputed position that on 18-7-1986 application seeking adjournment was already sent and on 21-7-1986 Mr. Sharma sought for an adjournment, which was refused by the Collector. The reply to the Show Cause Notice also raises a request for permitting them to cross examine, the witnesses whose statements have been recorded and relied upon by the Department. There is nothing on record to show that the said request was not pressed by the appellants. Considering these special circumstances, there are reasons to believe that the proper hearing has not been given by the ld.Collector. In this matter, and it would be in the interest of justice that the appellants are given opportunity of adducing evidence and have a proper hearing. This can be done only at the stage of adjudication and thus the only course open would be to order for remand of the matter.
5. The ld. DR has referred to the observations made in the interim order passed by the Bench at the time of hearing of the Stay Petition.
The Orders of the type are merely interim orders, specifically made for the purpose of granting waiver as contemplated under Section 35F of the Central Excises & Salt Act, and observations that are made there, unless they show that a final conclusion is drawn, have to be taken as those of interim nature, and conveying the prima facie view. In the latter part of the said order, the Hon'ble Members have also observed that these aspects have to be gone into at the final hearing stage. In that view of the matter, earlier observation of the Hon'ble Member about their having not been convinced of the non compliance of the principles of natural justice, have to be accepted as their prima facie view and not the one of conclusive nature.
6. Considering these aspects therefore, it appears that the matter ought to go back to the adjudicating authority for granting appropriate hearing, and then decide according to law. Because, it involves in adducing and appreciation of the oral evidence, we allow the appeal and set aside the order and remand the matters back to the adjudicating authority for granting personal hearing and decide the matters according to law. The Appellants shall remain present on the date fixed for personal hearing. As the matter is very old the Commissioner shall make efforts to dispose of the same within a period of three months from the date of communication of this order.