Decided on July 10,1991



K. Sankararaman, Member (T) - (1.) SHRI Ramendra Nath Ghosh, Proprietor, M/s. R.G. Industries, Calcutta, has filed this Stay Petition and the connected appeal, consequent to the rejection of his appeal by the Collector of Central Excise (Appeals) vide the latter's Order-in-Appeal dated 17-9-1990. The rejection was on the ground that the appeal "lacked in substance and was premature". That appeal was against the Communication dated 15-6-1990 issued by the Assistant Collector of Central Excise, C.P.O., Calcutta-I Central Excise Collectorate directing them to take out a Central Excise licence for manufacture of cosmetics in their factories and to clear the goods on payment of Central Excise duty after observation of Central Excise formalities. Though the present Stay Petition and appeal before us are directed against the said Order-in-Appeal passed by the Collector (Appeals), the petitioner has stated in his stay application that the impugned order was indiscreet as such an order was passed ex parte without giving any reasonable opportunity of being heard which, being the essence of justice, gross injustice had been done. The onus being on the department that he is a manufacturer required to take L 4 Licence, such an order without any legal evidence was, ex facie, bad and liable to be set aside. In the circumstances, the Stay Petition seeks the stay of the impugned order.
(2.) On a perusal of the Order-in-Appeal against which the present appeal and the connected Stay Petition have been filed, we find that the appellant was, in fact, granted personal hearing by the Collector (Appeals). They had also made a written submission to him on 7-9-1990. Hence, we find that the submission in the present Stay Petition about reasonable opportunity of being heard not having been given does not apply to the impugned Order-in-Appeal, but apparently goes back to the earlier communication of the Assistant Collector of Central Excise. The Stay Petition was heard by us on different dates viz. 17-1-1991, 27-2-1991 and 11-3-1991. Shri Deven Mukherjee, learned Counsel for the Petitioner and Shri M.N. Biswas, learned Senior Departmental Representative were heard in the matter.
(3.) ARGUING on behalf of the Petitioner, Shri Mukherjee referred to the submissions in the Stay Petition and the appeal memorandum. He pointed out that the Assistant Collector's communication dated 15-6-1990 is an order adversely affecting the appellant's rights. The said order was passed within nine days of the search by the. department which took place on 6-6-1990. Within this time the Assistant Collector had already come to the conclusion that production had exceeded the exemption limits. This was an ex parte decision. No show cause notice had been issued. No hearing had taken place. The principle of audi alteram partem had been violated. There was breach of Article 21 of the Constitution. He referred to the decisions of the Supreme Court in Jain Exports Pvt. Ltd. v. Union of India and Olga Tellis v. Bombay Municipal Corporation reported in 1988 ECC 49 and AIR 1986 SC 180 respectively. He, therefore, pleaded that the impugned order be stayed.;

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