- (1.) WE have heard Shri V.K. Upadhya, the learned Senior Counsel assisted by Shri Ritvik Upadhya, the learned counsel for the petitioners and Shri Ashok Mehta, the learned senior counsel assisted by Shri B.K.S. Raghuvanshi, the learned counsel for the Excise Department.
(2.) THE present writ petition has been filed for the quashing of the order in original dated 28.08.2015 passed by the Commissioner, Customs, Central Excise & Service Tax, 117/7, Sarvodaya Nagar, Kanpur. Normally the Court does not entertain the petition where an alternative remedy is available. A preliminary objection was raised at the time when the writ petition was filed but considering the facts and circumstances of the case, the Court entertained the writ petition and, by an order dated 29.9.2015 directed the Commissioner to appear before the Court and file a personal affidavit intimating the Court as to whether any notice or opportunity of hearing was provided to the petitioners pursuant to the order of the Tribunal dated 25.2.2013. The background leading to the filing of the writ petition is, that an order in original was passed on 31.3.2011, whereby duties and penalties were imposed upon the Company and its Directors and other persons. Such order was challenged in an appeal before the Customs, Excise and Service Tax Appellate Tribunal, which was allowed and the order in original dated 31.03.2011 was set aside. The Tribunal vide its order 25.2.2013 remitted the matter again to the Commissioner to pass a fresh order. The operative portion of the Tribunal's order dated 25.2.2013 is extracted herein under: "6. As we have already observed that there are various decisions laying down that a joint demand and joint penalty cannot be confirmed against the appellants against two persons, we deem it fit to set aside the impugned order and remand the matter to the adjudicating authority for fresh decision for fixing the liability of each and every individual separately. We make it clear that we have not gone to the merits of the case and the Revenue as well as assessee are entitled to raise all the legal issues including the appreciation of evidence on record, including the appellants request for cross examination afresh in the denovo proceedings."
(3.) THE Tribunal, while remitting the matter, permitted the assessee to raise all the legal issues including the appreciation of evidence on record, including the appellant's request for cross -examination. Pursuant to the order of the Tribunal, no further proceedings were initiated by the Commissioner and an ex parte order dated 28.8.2015 was passed by the Commissioner imposing fresh duties and penalties. The petitioner filed the present writ petition contending that the order in original was passed ex parte without issuing notice and without giving an opportunity of hearing. Specific allegations were made in para 6, 18 and 19 of the writ petition.;