SCA/6126/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6126 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE AKIL KURESHI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= CASTROL INDIA LIMITED - Petitioner(s) Versus UNION OF INDIA & 1 - Respondent(s) ================================================= Appearance : MR AS VAKIL for Petitioner(s) : 1, MR RM CHHAYA for MR HARIN P RAVAL for Respondent(s) : ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 21/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) Rule. Learned Standing Counsel Mr RM Chhaya for learned Assistant Solicitor General Mr.Harin Raval waives service of rule on behalf of the respondents. The matter is taken up for final disposal today. SCA/6126/2008 2/5 JUDGMENT 2. In the present petition, the petitioner has challenged the order-in-original dated 25th March 2008 passed by the Deputy Commissioner of Central Excise, Division III, Silvasa, respondent No.2 herein. By the said order, the said authority dismissed the application dated 2nd January 2008 filed by the petitioner seeking provisional assessment for the calendar year 2008. 3. The petitioner is engaged in the business of manufacture of excisable goods and is holding central excise registration. The petitioner has filed an application dated 2nd January 2008 before the Deputy Commissioner for provisional assessment of the goods for the calendar year 2008. Hearing of the said application was fixed by the Deputy Commissioner on 29th January 2008. Several adjournments were thereafter granted. Eventually, the application was fixed for hearing on 25th March 2008. On 25th March 2008, the representative of the petitioner gave an application stating, inter alia, that due to some personal tragedy to the Manager of the petitioner Company who handles the legal matters, he is not in a position to attend the hearing and hearing may, therefore, be adjourned and be fixed in the second week of April. It was also requested that personal hearing be granted. Respondent No.2,however, did not grant the request and by the impugned order dated 25th March 2008 dismissed the application of the petitioner dated 2nd January 2008. It is this order which the petitioner has challenged in this petition primarily on the ground that the same was passed without hearing the petitioner. 4. On behalf of the petitioner, it was primarily contended by learned advocate Shri Vakil that the authority ought to have adjourned the hearing when a specific application for the said purpose was filed on genuine ground. It was contended that the authority not only ignored the request of the petitioner for SCA/6126/2008 3/5 JUDGMENT adjournment of the hearing, but rejected the application on the very same day i.e. 25.3.2008. On the basis of the death certificate dated 11.4.2008 produced by the petitioner on record with a copy to the advocate to the other side, Shri Vakil elaborated that the mother of the person handling the legal matters of the petitioner Company had expired on 19th March 2008. He, therefore, submitted that on account of the said event, Mr.Anthony Fernandes, Head-Taxation of the petitioner Company could not present himself before the Deputy Commissioner of the hearing fixed on 25th March 2008. He, therefore, submitted that the impugned order be set aside and the proceedings be remanded for fresh consideration and disposal by the Deputy Commissioner. He further submitted that by communications dated 15.1.2008 at Annexure 5 and 26.2.2008 at Annexure 6, it was conveyed that provisional assessment as prayed for cannot be granted. However, the hearing was fixed by the authority on a subsequent date. He submitted that when the hearing was yet to take place, the authority ought not to have expressed an opinion that provisional assessment cannot be granted. 5. In view of the peculiar facts of the case, learned counsel Shri Chhaya did not insist that the petitioner should exhaust the alternative remedy of appeal. 6. Having heard the learned advocates appearing for the parties and having perused the material on record, we find that the petitioner deserves to be given an opportunity to present its case before the authority. Non-participation of the petitioner before Deputy Commissioner during hearing fixed on 25th March 2008 had valid justification. In fact, the application for adjournment was also SCA/6126/2008 4/5 JUDGMENT filed. In this view of the matter, the impugned order dated 25th March 2008 at Annexure 1 needs to be set aside. 7. It may also be noted that though in the communications dated 15.1.2008 at Annexure 5 and 26.2.2008 at Annexure 6, it is stated that provisional assessment cannot be granted as prayed for by the petitioner, the same authority fixed the hearing of the application on a subsequent date. The opinion that provisional assessment cannot be granted therefore has to be treated as prima facie and not final and conclusive. 8. Under the circumstances, the petition is disposed of with following directions: i) The impugned order dated 25th March 2008 is set aside. The proceedings are remanded to the Deputy Commissioner for fresh consideration in accordance with law after hearing the petitioner unmindful of the observations made in the communications dated 15.1.2008 and 26.2.2008 at Annexure 5 and Annexure 6 respectively. ii) It is clarified that we have expressed no opinion on merits of the claim of the petitioner made in its application dated 2.1.2008. iii) The petitioner shall appear before respondent No.2, Deputy Commissioner, on 7th May 2008 on which date, if it is not convenient to the Deputy Commissioner to proceed with the hearing, he shall grant a suitable date. iv) Rule is made absolute to the aforesaid extent with no order as to costs. (M.S. SHAH, J.) (AKIL KURESHI, J.) SCA/6126/2008 5/5 JUDGMENT zgs/-