N.D.Ojha, J. - (1.) By this writ petition seizure of certain goods of the petitioner by the Assistant Collector, Central Excise Allahabad, the respondent in the present writ petition, is sought to be quashed. The main ground on which the writ petition has been filed was that no adjudication of liability of the petitioner had been made prior to the order of seizure and consequently it was not sustainable. In this connection, reliance was placed on an order of the Collector (Appeals) passed in July, 1985 whereby an earlier decision of adjudication made by the respondent was set aside and he was required to decide the matter denovo in the light of the observations made in the appellate order. On its basis it was urged that without making an adjudication in pursuance of the said order of remand it was not open to the respondent to seize the goods of the petitioner. The writ petition was presented on 21st February 1986. On that date counsel for the respondent appeared and undertook to file a counter affidavit. Further adjudication proceedings were ordered to be stayed. Subsequently, counter and rejoinder affidavits have been filed. The counter affidavit indicates that an order of adjudication had been passed on 19th February, 1986. A copy of that order was attached as Annexure-1 to the counter affidavit. Subsequently an application was filed for amendment of the writ petition with a prayer that the said order may also be quashed. The writ petition was taken up for admission yesterday and it was urged by counsel for the petitioner that the order passed on 19th February, 1986 was bad inasmuch as it had been passed without giving the petitioner opportunity of hearing even though a date was fixed for the said purpose. According to him the case could not be taken up on the date fixed and without fixing any further date the matter was decided by respondent No. 1 by order dated 19th February, 1986. Counsel appearing for the respondent made a prayer yesterday for the case being taken up today so that he may be in a position to go through the original record and verify whether the submission made by counsel for the petitioner in this behalf was substantiated by the record or not. When the case was taken up today, counsel for the parties made a joint statement that since counter and rejoinder affidavits have all been exchanged the writ petition may be decided finally at this very stage. We are also of the opinion that in pursuance of the aforesaid request the writ petition may be finally decided. We have accordingly heard counsel for the parties on merits of the writ petition. In our opinion, a case has been made out for allowing the application for amendment of the writ petition and for adding the prayer that the order dated 19th February, 1986 may be quashed. We accordingly allow that application. The necessary amendment may be incorporated in the writ petition.
(2.) It has been urged by counsel for the petitioner relying on annexures -15 and 16 of the writ petition which have been filed along with the aforesaid amendment application, that before passing the order dated 19th February, 1986 the petitioner was not granted hearing as was contemplated by the aforesaid annexures Annexure-15 to the writ petition is a notice of the respondent addressed to the petitioner. It is dated 20th December, 1985 and it indicates that 7th January, 1986 had been fixed for personal hearing in the case. Annexure-16 to the writ petition is copy of an application addressed to the respondent and filed on behalf of the petitioner. In this application it was stated that the representative of the petitioner had appeared on 7th January, 1986 but was informed that the respondent was busy in a conference and will not be available. A prayer was made in this application that the next date may be fixed after 21st January, 1986., From the endorsement appearing on the photostat copy of the said application it appears that the application was received by some official of the respondent. After going through the original record counsel for the respondent has stated that there is nothing on the record to indicate that any further date was fixed for personal hearing after 7th January, 1986 in pursuance of the prayer made in this behalf in the application dated 7th January, 1986, a copy whereof has been filed as Annexure-16 to the writ petition. However, what has been urged by him, is that the representative of the petitioner himself appeared on 15th of January, 1986 and filed certain papers. As regards this, counsel for the petitioner states that he has no definite information as to whether any one on behalf of the petitioner had or had not appeared on 15th January, 1986. Be that as it may, even if it is accepted that somebody on behalf of the petitioner had appeared on 15th January, 1986 and filed some papers, it cannot be said that it was tantamount to granting personal hearing on a date fixed in this behalf as was contemplated by the respondent and as is apparent by the notice, a copy whereof has been filed as Annexure-15 to the writ petition whereby 7th January, 1986 was fixed as the date for personal hearing. When the case could not be taken up on 7th of January, 1986 and a prayer had specifically been made on behalf of the petitioner in the application made on that date, a further date for personal hearing should have been fixed so that the petitioner could appear on that date in order to substantiate his case. This not having been done the order dated 19th February, 1986 cannot be sustained and deserves to be quashed.
(3.) As regards the main prayer contained in the writ petition challenging the seizure, it was urged by counsel for the respondent that an appeal lay against the order of seizure and the writ petition for that relief is not maintainable. We do not consider it necessary to go into that question inasmuch as Sri. R.N. Bhalla, counsel for the petitioner has stated that since order dated 19th February, 1986 is being quashed and the respondent is being directed to decide the adjudication proceedings afresh as per the order of remand passed by the Collector already referred to above, he is not pressing for the relief against the order of seizure at this stage.;