1. The petitioner in this application has, inter alia, prayed for issuance of a writ, direction or order in the nature of mandamus directing the respondents to comply with the representation of the petitioner for supply of documents as also for production of witnesses for cross-examination in terms of its letter dated 26-12-2000.
2. A show cause notice was issued to the petitioner on 24-11-2000 whereby and whereunder the petitioner was called upon to show cause as under:
"From the above it appears that the assessee has failed to produce the documents evidencing various measurements of the furnace and the measurements furnished by him appear to be incorrect as explained above. The technical team has taken the production of ingots physically and has arrived at the capacity of furnaces F1 and F2 as 3.2 MT and 3.0 MT respectively. The entire process of working out the capacity and the other technical details which were obtained by the technical team were accepted by the assessee. Hence it can be inferred that the capacity of the furnace Fl was 3.2 MT and not 2.0 MT and that the capacity of the furnace F2 was 3.0 MT and not 1.7 MT.
From the report on capacity of assessment of the induction furnace dated 4-4-2000 given by NISST,
(i) the installed capacity of the induction furnace F1 appears to be 3.2 MTs. Hence the duty liability in terms of Rule 96ZO(3) of Central Excise Rules, 1944 when calculated pro rata shall be 5,00,000 X 3.2 /3.0 = Rs. 5,33,333/- per month The differential duty payable for the period 8/97 to 3/2000 shall be thus calculated:
Differential duty payable = (5,33,333 - 3,13,333) x 32 = Rs. 64,00,000/-
The assessees are required to submit a written reply within the stipulated time of 30 days and also required to produce all evidence upon which they intent to rely in support of their defence.
If no reply is received within the stipulated time or if they fail to appear before the adjudicating authority when the case is posted for hearing the case will be decided basing on the evidence available on record and on merits.
This notice is issued without prejudice to any other notice or action that may be contemplated against the parties mentioned herein, under the Central Excise Act, 1944 and the Rules made thereunder or under any other Act which is in force for the time being in India.
Reliance for issue of this notice is based on the following records/documents:
"I am directed to inform you that the Commissioner of Central Excise, Hyderabad-II Commissionerste, Hyderabad has not considered your request for supply of the non-relied upon documents as mentioned in your letter cited above as which were not mentioned in the said show cause notice. The relief upon documents as mentioned in the above Sessions Case was already supplied along with the above Sessions Case. This is for your information."
3. Mr. Ravi, learned Counsel for the petitioner, has raised a short question in support of this application. The learned Counsel would contend that having regard to the fact that principles of natural justice which are required to be complied with, the petitioner must be given an opportunity to rely upon the documents which have not only been relied upon by the Department but also for his defence. Strong reliance in this connection has been placed on a judgment of Sen, J., (as His Lordship then was) in M.S. Naina v. Collector of Customs, West Bengal, Calcutta - 2000 (123) E.L.T. 39 (Cal.). Our attention has further been drawn to an unreported decision of a Division Bench of this Court in Writ Petition No. 21450 of 2000, dated 24-1-2001.
In M.S. Naina (supra), the Calcutta High Court has observed :
"The petitioner by his application dated the June 20, 1969 had prayed for two things. Firstly he had prayed for disclosure of a forensic test report which was directed in course of the adjudication proceeding when the petitioner had produced the key No. 948328. Importance of possession of this key to prove possession of the seized currency notes had not been disputed by the Collector. As a matter of fact, he had a suspicion that the key produced was not the real key in use but might have been manufactured later on. Therefore to ascertain the genuineness of this key and further to ascertain whether the key was in use or not he himself had directed a forensic test. Having directed such a forensic test it is not open to him to disown the relevancy or the importance of such a test report. Now the petitioner wanted to know the result of the test and therefore he asked for a copy of the report. The Collector did not refuse this prayer on any ground that the report is not relevant. On the other hand, the reason for the rejection of the prayer was that such report will be disclosed only if it be used against the petitioner and not otherwise. In my opinion, the Collector was obviously in error. A document to be relevant may support either the prosecution or the defence. No adjudicating authority can refuse production of such a document only because that document will be of no use to the prosecution. Refusal of a document on that account would certainly amount to refusal of reasonable opportunity to the defence. This being the position, I cannot but hold that the Collector was obviously in error in refusing disclosure of the report on the ground assigned and that such refusal has necessarily prejudiced the defence."[paragraph 14]
4. We agree with the aforementioned dicta. Furthermore, in the aforementioned unreported decision in Writ Petition No. 21450 of 2000, the Division Bench of this Court, having regard to the principles of fair play, observed :
"Having regard to the fact that the evidence, at whatever stage, given by the witnesses is going to be relied upon for adjudicatory purposes by the 1st respondent, we feel it just and necessary to conform to the principles of fair play that such witnesses to whom summons were already issued are necessarily to be summoned.
Fresh summons be issued to the Special Messenger of the Department to be served on priority basis. The petitioner shall avail of the said opportunity in one sitting or even spilled over to the next day. Insofar as clubbing of the show cause notices is concerned, the petitioner is permitted to file an explanation, if it so wishes and time of two weeks from today is granted for that purpose. Respondent shall fix the date for summoning the witnesses beyond a period of two weeks from the date of receipt of a copy of this order and then finalise the proceedings by 31-3-2001. We make it clear that if any witness is not available, then the evidence of such witness shall not be relied upon by the respondent for adjudication and he shall be entitled to decide the matter on the material available." [paragraphs 4 and 5]
5. In the counter filed on behalf of the respondents, it is stated that all the documents referred by the petitioner in his representation dated 26-12-2000 have no bearing on the subject-matter.
6. Keeping in view the decision of the Calcutta High Court as also of this Court, we dispose of this writ petition by directing the respondents to supply the aforementioned documents to the petitioner at an early date and the witnesses who have been examined on behalf of the Department be produced for cross-examination. Such documents should be supplied to the petitioner at an early date and preferably within a period of two weeks from the date of communication of a copy of this order and the witnesses who have already been examined may be produced on a day as specified by the respondents for cross-examination by the petitioner: However, it is made clear that on no ground, the petitioner shall seek an adjournment. There shall be no order as to costs.
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