K.S.JHAVERI,J. - (1.) By way of this petition, the petitioner has prayed for following relief:- (i) by an appropriate, writ, order or direction to quash and set aside the proceedings initiated by way of show cause notice dated 6-10-2017 as the same is issued in contradiction to departmental circular/instruction dated 25-4-2016 and 13-10-2016 by respondent No. 2. (ii) without prejudice to above by an appropriate, writ, order or direction to direct the respondent No. 2 to direct his office, jurisdictional office, respondent No. 3 office to supply resumed unrelied upon documents and RTI Documents and complete records of the case in the interest of justice to the petitioners to submit appropriate defence reply and to request for cross examination of desired persons. (iii) by an appropriate, writ, order or direction to grant reasonable time to submit the defence reply after providing documents under Rule 24A and documents requested in prayer No. 2.
(2.) Counsel for the petitioner has contended that show cause notice was issued. The petitioner made representation for supply of the documents which sought to be relied by the department but the same was accepted in spite of decision of this Court in PGO Processors Private Ltd. v. Commissioner, C. Ex.2000 (122) E.L.T. 26 (Raj.) and decision of Supreme Court in Kothari Filaments v. Commissioner of Customs (Port), Kolkata2009 (233) E.L.T. 289 (S.C.) wherein it has been observed as under:- "8. Mr. J.K. Srivastava, learned Counsel appearing on behalf of the appellant, submitted that before the impugned order was passed by the authorities of the Customs Department, admittedly an enquiry was conducted at various places. However, the documents collected during the said enquiry were supplied to them although reliance was placed thereupon and, thus, the principles of natural justice have been violated. 15. The statutory authorities under the Act exercise quasi-judicial function. By reason of the impugned order, the properties could be confiscated, redemption fine and personal fine could be imposed and in the event an importer was found guilty of violation of the provisions of the Act. In the event, a finding as regards violation of the provisions of the Act is arrived at, several steps resulting in civil or evil consequences may be taken. The principles of natural justice, therefore, were required to be complied with. 16. The Act does prohibit application of the principles of natural justice. The Commissioner of Customs either could have passed the order on the basis of the materials which were known only to them, copies whereof were supplied or inspection thereto had been given. He, thus, could have adverted to the report of the overseas enquiries. A person charged with misdeclaration is entitled to know the ground on the basis whereof he would be penalized. He may have an answer to the charges or may have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply. 18. In view of the aforementioned settled legal principles, there cannot be any doubt whatsoever that the principles of natural justice have been violated in this case."
(3.) He also relied upon the decision of this Court in M/s. Patron Detective and Security Service (D.B. Central/Excise Appeal No. 5/2014) decided on 11-10-2017 [2018 (8) G.S.T.L. 133 (Raj.)] wherein it has been held as under:- "2. This Court while admitting the appeal on 30-3-2015, framed following substantial question of law:- "(1) Whether non-supply of resumed records which are relied upon in SCN and adjudication order constitute violation of principles of natural justice, when provided in spite of preliminary objections and request letters? (2) Whether onus of proving classification was on the part of appellant when all the resumed and relied upon documents were supplied to him in spite of repeated requests?" 10. It is well settled principle of law that the person who is to take an action is required to supply basic documents, which sought to be relied upon. The documents though referred in the show cause notice were given to the assessee by the Tribunal. 12. In that view of the matter, we remit back the matter to the first authority. The petitioner will appear before the first authority on 6-11-2017 and authority will settle the matter within a period of four weeks and reply after the documents are supplied to the appellant. Reply will be filed if required within the period of three weeks from receipt of the documents. Therefore, issue No. 1 is answered in favour of assessee.";