JUDGMENT [ENTITY], J.
1. The petitioner No. 1 is a Public Limited Company represented by the petitioner No. 2, its Managing Director. It deals with manufacture and sale of plywood, board etc. The petitioner Company has a plywood factory at Tinsukia (Assam). It is liable to Central Excise duties in respect of the products manufactured in the said factory. The petitioner is aggrieved by Annexure-L order dated 28.09.01 passed by the Commissioner of Central Excise, Shillong confirming the demand made in terms of the provision of [SECTION] of [ACT] and in addition imposing the penalty of Rs. 2,50,000/- in terms of the provision of [SECTION] of the [ACT]. The demand made was for Rs. 1,82,67,650.99 and the demand was made vide show cause notice issued about 21 years back. Thanks to ongoing litigation initiated at the instance of the writ petitioner, the matter has not attained its finality as yet.
2. It was in 1984, to be precise, on 20.02.84 the officers of the Directorate of Anti-evasion of Central Excise had made raids simultaneously at the factory of the petitioner Company at Tinsukia as well as at various other residences of the Directors of the Company and in the course of the raids, books of accounts and other related papers, documents, bills, price list etc. were ceased.
3. After the aforesaid seizure, the petitioner company was issued with show cause notice dated 12.12.85 alleging that the petitioner had evaded [ACT] to the tune of Rs. 1,82,67,650.99 by making misstatement, suppression of material facts and by misdeclaring the price list and misclassification of goods to the Central Excise authorities from time to time for the period from 1981 to 24.02.84.
4. By the show cause notice, the petitioner was asked to show cause as to why:
a) [ACT] amounting to Rs. 1,28,37,893.28 should not be demanded from and paid by the petitioner under [SECTION] of the [ACT];
b) [ACT] amounting to Rs. 6,35,950.58 being the differential duty involving on ex-factory as well as between the ex-factory price (assessable value) and the region wise applicable rates as per the internal price list issued secretly by the petitioner company head office at Kalkatta should not be demanded from and paid by the petitioner under [SECTION] of the [ACT];
c) [ACT] amounting to Rs. 47,32,095.86 being the differential duty should not be demanded from the paid by the petitioner company under [SECTION] read with [SECTION] of the Act;
d) [ACT] amounting to Rs. 61,711.27 being the differential duty should not be demanded from the paid by the petitioner company under [SECTION] read with [SECTION] of the Act and
e) A penalty should not be imposed under the provision of the [SECTION] Q of the [ACT] and the land, building, plant, machinery belonging to petitioner company or any other excisable goods but such land or any such building should not be confiscated under [SECTION] to contravene the rules mentioned above. The amounts indicated and the penalty were determined for the reasons assigned in the show cause notice.
5. According to the petitioner inspite of the demands made for inspection of the relevant documents seized by the authority only some of them were made available to the petitioner for inspection and as such it made time to time request for supply of the documents.
6. In response to the letter of the petitioner dated 30.04.86, the Collector of Customs and Central Excise, Shillong by his letter dated 30.05.86 informed the petitioner about the further time of two months granted to file reply. On 25.06.86, the petitioner company through its Chief Executive made a further request for allowing inspection of the documents sought for by the petitioner. However, on 11.08.86, the petitioner company submitted its reply to the show cause notice describing the same to be an interim reply and made further request for allowing inspection of books of accounts seized from the petitioner. On 21.08.86 the petitioner company was allowed to take the statements made by the Directors and other officials and agents of the petitioner company. However, even thereafter, again on 21.08.86 a further request was made to the Commissioner 6f Central Excise, Shillong for passing necessary orders directing the Directorate of Anti Evasion to make available other records which were allegedly not supplied to the petitioner company.
7. On 25.11.86, the Directorate of Anti Evasion, Zonal Unit, Calcutta intimated the petitioner that all the records and documents seized from different premises of the petitioner company were transferred to the adjudicating authority and the petitioner company may contact the said authority for the purpose. On the basis of further request made by the petitioner, the Assistant Collector (Techn.) Customs and Central Excise, Shillong by his letter dated 31.12.86 informed the petitioner company that the records were available at the Collectorate Headquarters at Shillong. By the said letter the petitioner company was asked to examine the copies of the relevant records and thereafter to furnish its reply within 10 days, the representatives of the petitioner company carried out the inspection and took extracts from the records. However, again by its letter dated 12.02.87, it made a request to the Commissioner of Central Excise to supply certain more documents.
8. A mention has been made in paragraph 5 of the writ petition about the above correspondences made by the petitioner without, however, annexing the copy of such correspondences. However, the petitioner has annexed a copy of the letter dated 14.03.87 as Annexure-B to the writ petition which was addressed to the Collector of the Customs & Central Excise, Shi Hong. By the said letter a request was made to allow the examination and copying of the documents mentioned in the letter with the assertion that reply would be filed within a month of doing so.
9. According to the petitioner, the Assistant Director of Anti Evasion, Calcutta supplied certain documents leaving aside others. In the meantime, the Commissioner of Central Excise, Shillong passed an order dated 24.02.90 confirming the demand of Rs. 1,82,67,850/- together with penalty of Rs. 2,50,000/-. Being aggrieved, the petitioner preferred a writ petition before this Court registered and numbered as [CASE NUMBER]. The order dated 24.02.90 was set aside by this Court, by the order passed on 19.03.90 with the direction the adjudicating authority to furnish all documents to the petitioner company within two months after which the petitioner company was to submit its reply within three months. It was further provided that personal hearing should be given to the petitioner and thereafter the authority would pass necessary order.
10. According to the petitioner, in spite of the aforesaid order passed by this Court, it was not provided with the copies of the documents it had sought for. The petitioner company submitted Annexure-D application dated 24.04.90 to the Collector of Customs and Central Excise enclosing therewith the list of some more documents for inspection etc. The petitioner once again filed another writ petition being [CASE NUMBER]. It appears that the writ petition was filed within 1 and 1/2 months of disposal of the earlier writ petition. The writ petition was dismissed by order dated 10.05.96 with a cost of Rs. 5000/. The petitioner has chosen not to annex the copy of the order dated 10.05.96 passed by this Court in the aforesaid [CASE NUMBER], instead it has referred to some of the correspondences made after disposal of the first writ petition by order dated 19.03.90.
11. After dismissal of the second writ petition with a cost of Rs. 5000/- by order dated 10.05.96, the respondent No. 2 issued a notice to the petitioner company to appear before the Commissioner of Central Excise, Shillong on 09.02.98 for personal hearing. As usual, the petitioner company again prayed for postponement of personal hearing. Acceding to the request made by the petitioner the hearing was reflxed on 26.05.98. On that day the petitioner company submitted a written submission.
12. By Annexure-J communication dated 26.08.98, the Assistant Commissioner Central Excise, Shillong asked the petitioner company to submit its reply within 15 days of receipt of the letter indicating that on failure on the part of the petitioner to do so, the matter shall be decided ex-parte. The petitioner company was also directed to submit an exhaustive list of documents which were allegedly required enabling it to submit a complete reply. Although the petitioner company was requested to respond the communication within 15 days, the petitioner by its letter dated 16.09.98 (Annexure-K) once again requested for supply of documents in reference to its earlier list of 24.04.90 and 13.02.92 without, however, complying with the request made by the respondents for submitting an exhaustive list of documents.
13. From the above narration of facts, it will be seen that the matter is pending for the last about 21 years in the name of non-furnishing of required documents to submit an effective reply. The same very plea as has been raised in the writ petition, was also raised in the earlier writ petitions filed by the petitioner. The writ petition being [CASE NUMBER] was dismissed by Order 10.05.96 imposing a cost of Rs. 5000/-. After such dismissal of the writ petition, the petitioner instead of submitting its reply to the show cause notice, kept on dillydallying with the matter. It filed the 3rd writ petition in the form of the present writ petition after confirming the demand made by the impugned order dated 28.09.01.
14. While forwarding a copy of the impugned order it was indicated that any person deeming himself aggrieved by the order would be entitled to prefer an appeal to the Customs, Excise and Gold Control Appellate Tribunal within three months from the date of personal service of the order. However, the petitioner instead of preferring any such appeal invoked the writ petition jurisdiction of this Court.
15. In the writ petition the only ground urged is that the petitioner company having not been supplied with the required documents, it was handicapped in submitting its reply and thus the impugned order without providing reasonable opportunity of being heard to the petitioner, is illegal and unsustainable in law.
16. The respondents have filed their counter affidavit denying the contentions raised in the writ petition. In the affidavit they have indicated about issuance of the show cause notice and as to how till 1989 the petitioner company did not respond to the same. In paragraph-5 of the writ petition the respondents have categorically stated that after the order dated 19.03.90 passed by this Court in the first writ petition being [CASE NUMBER] all the copies of the documents were furnished to the petitioner, but inspite of that, it preferred the second writ petition being [CASE NUMBER]. The categorical statement made by the respondents having not been denied by the petitioner by filing any rejoinder affidavit goes unrefuted. The statements made in paragraphs-7 and 8 of the affidavit are quoted below:
7. That thereafter the writ petitioner submitted a list of documents to the department and in response to that the department has given all the documents and the writ petitioner examined all the documents for the period from 19.01.87 to 01.02.87 and they have received copy of all the documents totalling 1396 documents with proper receipt and signature.
8. That on 20.08.90 writ petitioner also requested to supply documents lying with the Director General, Anti Evasion, Ahmedabad and seized documents records, and accordingly representative of the writ petitioner received the same on 06.11.90.
17. In paragraph-9 of the counter affidavit it has been stated that the petitioner was asked to appear on 09.02.98 for personal hearing in support of their defence in respect of show cause notice, but a request was made for postponing the same. Accordingly, the request was accepted by postponing the hearing by reflexing the same on 25.03.98. On that day also nobody represented the petitioner company, but a request was made for another date in April. Accordingly the matter was refixed on 26.05.98. On that day also the petitioner did not appear before the authority but submitted one written statement stating that the show cause notice was not maintainable.
18. In paragraph-2 of the counter affidavit in the head Parawise Comments, the respondents have stated that the petitioner collected all the documents from Ahmedabad on 06.11.90 through one Shri [ENTITY], an authorized representative of the petitioner company. Similarly in paragraph-4 of the affidavit under the head Parawise Comments, the respondents have categorically stated that the petitioner company had already obtained the copies of the documents and that their plea of non supply of the same is misleading.
19. In paragraph-6 of the counter affidavit, the respondents have stated that the petitioner company was given ample opportunity to represent its case and that the impugned order of the Commissioner has been reviewed by the Central Board Excise and Customs and considering the gravity of the offence, the Board has suggested for enhancement of penalty vide order dated 18.09.02.
20. The above pleas raised in the counter affidavit have not been denied by the petitioner. Ms. [ENTITY], learned Sr. counsel assisted by Ms. [ENTITY], learned Counsel for the petitioners emphasized on various facets of the principles of natural justice and submitted that since the petitioner company was deprived of submitting an effective show cause reply in absence of required documents, the impugned order dated 28.09.01 passed by the Commissioner Central Excise, Shillong is not sustainable in law and liable to be set aside and quashed. On the other hand, Mr. [ENTITY], learned C.G.S.C. In reference to the stand of the respondents in the counter affidavit as well as the impugned order submitted that the evasive tendency of the petitioner to pay lawful dues to the respondents is writ at large on the face of it. He submitted that in view of the facts and circumstances involved in the case, the petitioner is not entitled to any relief. He also submitted that the petitioner inspite of availability of alternative remedy of preferring an appeal as was indicated in the communication, ought not have rushed to the writ Court and that too for adjudication the disputed questions of fact.
21. As notice above, the only plea raised by the petitioners towards assailing the legality and validity of the impugned order dated 28.09.01 is that the petitioner company was not supplied with the required documents. The plea of the respondents in this regard has been quoted above. It is the specific case of the respondents that the petitioner company was given all reasonable opportunity to inspect the documents. Such plea of the petitioner did not find favour of this Court and the earlier writ petition filed by it being [CASE NUMBER] was dismissed by order dated 10.05.1996 imposing a cost of Rs. 5000/-.
22. In the impugned order also the plea of the petitioner that the copies of the relevant documents were not supplied with, has been dealt with. In the impugned order while making discussion on all the materials on record and returning the finding, the Commissioner of Central Excise, Shillong who has passed the order, has discussed about the plea in detail. It has been noticed by him that the petitioner company deliberately did not file show cause reply for one reason or another so as to frustrate the speedy adjudication proceeding of the case. He has also noticed as to how immediately after disposal of the first writ petition, the petitioner filed the second writ petition being [CASE NUMBER] 90 challenging the very issue of the show cause notice. The writ petition was dismissed by order dated 10.05.96 with the cost of Rs. 5000/- observing that the petitioner unnecessarily dragged the authority to the Court.
23. The Commissioner has also discussed in the impugned order about the events that took place leading to passing of the impugned order which has been indicated in the affidavit in opposition filed by the respondents. It has also been observed in the impugned order that the petitioner company had already obtained the copies of the documents and that the plea that some of the documents were still not supplied was misleading and ambiguous. It has also been observed that the petitioner company tried to create confusion.
24. As regard the plea of the petitioner in its letter dated 16.09.98, it has been observed in the impugned order that all the documents mentioned in the letter dated 16.09.1998 were already supplied to the petitioner from time to time in different places. It has also been recorded that the department had already complied with the directions of this. Court and made all sincere and painstaking efforts towards supplying the documents. Specific plea of the petitioner in its letter dated 16.09.1998 that the seized documents kept with DGAE, Ahmedabad were not handed over to it, has also been dealt with in the impugned order. It has been mentioned that such plea of the petitioner is not tenable in view of the fact that its authorized representative, one Shri [ENTITY] had already collected all the relied upon and non-relied documents with due endorsement from DGAE, Ahmedabad on 16.11.90.
25. After such detailed discussion about the plea of the petitioner that the required documents were not furnished and dealing with the entire pros and cons of the matter, the Commissioner of Central Excise, Shillong has confirmed the demand with imposition of the penalty by his aforesaid order dated 28.09.2001 and I do not find any infirmity with the same. It cannot be said that the petitioner and for that matter its representatives could not examine the documents and/or could not examine the copies thereof. [ENTITY]n in this proceeding also, the petitioner could not pinpoint any particular document failure to supply of which has resulted to any prejudice to the defence of the petitioner. In fact, although for the last 21 years, the petitioner company has been maintaining that some of the required documents were not supplied to it, but nothing has been highlighted specifically. In addition, it has also not been stated as to how such documents are relevant and have a bearing on the defence of the petitioner. There is no whisper of causing any prejudice to the case of the petitioner by the alleged non furnishing of the required documents. [ENTITY]n if it is admitted for the sake of argument that some of the documents were not supplied to the petitioner, but in absence of any indication thereof and as to how the same has resulted in prejudice to the defence of the petitioner, same by itself cannot be a ground, to interfere with the impugned proceeding. Thus, in my considered opinion there was no violation of the principles of natural justice towards passing the impugned order.
26. This now leads us to the second issue as to whether the petitioner ought to have availed the alternative remedy by way of preferring appeal to the Customs, Excise and Gold Control Appellate Tribunal. The petitioner instead of exhausting alternative remedy of appeal has invoked the writ jurisdiction. As has been observed by the Apex Court in the decision reported in [PRECEDENT], the High Court exercising its power under [SECTION] of the [ACT], has a discretion to entertain or not to entertain a writ petition and that the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction.
27. In the case of [PRECEDENT], the Apex Court while observing that the power relating to alternative remedy has been considered to be a rule of self imposed limitation and that it is essentially a rule of policy, convenience and discretion and never rule of law, it is within the discretion of jurisdiction of the High Court to grant relief under [SECTION] of the [ACT]. The Apex Court further observed that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere, if there is an adequate efficacious alternative remedy and that if some body approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extra ordinary jurisdiction. In the instant case, the position has been explained above. I am of the considered opinion that to exercise the writ jurisdiction in the given facts and circumstances of the case instead of augmenting the cause of justice, it will be a failure pf justice and the abuse in the process of the Court.
28. In the case of [PRECEDENT] , the Apex Court dealing with the rule of audi alteram partem, observed thus:
44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that predecisional hearing is better and should always be preferred to post-decisional hearing is better and should always be preferred to from Laws of Med, Laws of God also observed the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon [ENTITY] and [ENTITY] before giving an opportunity to show cause as to why they had eaten the forbidden threat. (See [PRECEDENT] 18.) But we are also aware that the principles of natural justice are not rigid of immutable and hence the cannot be imprisoned in a straightjacket. They must yield to and change with existence of situation. They must be confined within their limit and cannot be allowed to run wild. It has been stated "to do a great right" after all, it is permissible some time "to do a little wrong" (per [ENTITY] C.J. in [PRECEDENT]. While interpreting legal provisions a Court of law cannot be unmindful of the hard realities of life. In your opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "presidential".
29. I may also gainfully quote the observation of the Apex Court in the case of [PRECEDENT] .
12. Mr. [ENTITY], learned Counsel appearing for the petitioner, contended that the remedy before the tribunal under the [ACT] is wholly illusory inasmuch as the tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said tribunal. We do not agree with these arguments of the learned Counsel. When the statute has provided for the constitution of a tribunal for adjudicating the disputes of a Government servant, the fact that the tribunal has no authority to grant an interim order is no ground to by pass the said tribunal. In an appropriate case after entertaining the petitions by and aggrieved party if the tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under [SECTION] of the [ACT] but that is no ground to by-pass the said tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the tribunal. In the said view of the matter, the appeals are dismissed. No costs.
30. The above principle has been reiterated by the Apex Court in the case of [PRECEDENT] and so also in the case of [PRECEDENT] . The Apex Court observed that the proceedings under [SECTION] are not a substitute for an appeal.
31. In the instant case inspite of receipt of the show cause notices and understanding the same so as to question the very jurisdiction towards issuance of the same, the petitioner has raised the issue relating to violation the principles of natural justice. The issue has been discussed in detail above. In the case of [PRECEDENT], the Apex Court observed:
24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in [PRECEDENT] of which two of LIS ([ENTITY], C.J. and [ENTITY], J) are parties wherein upon noticing a large number of decisions it was held:
29. The principles of natural justice, it is trite, cannot be put in a straightjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby.
25. The principles of natural justice, it is well settled, must not be stretched too far.
32. In [PRECEDENT], the Apex Court held though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to add changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is Governed.
33. The above principles of law have been reiterated by the Division Bench of this Court. In the decision reported in [PRECEDENT].
34. The Apex Court in the case of [PRECEDENT] observed thus:
32. Now, coming back to the illustration given by us in the proceeding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub Clause (iii) be in the interest of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities, which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be counterproductive exercise.
35. In view of the entire facts and circumstances of the case discussed above, the plea of violation of principles of natural justice is not available to the petitioner. Thus, both on merit of the contentions raised in the writ petition as well as on ground of there being alternative remedy by way of preferring appeal against the impugned order, the writ petition fail.
36. Writ petition is dismissed, leaving the parties to bear their own costs.