Natural Law As Level
Natural Law As Level
GUIDING PRINCIPALS OF NATURAL JUSTICE IN ADJUDICATION
Even in monarchy king used to give proper hearing before held any body guilty. Historians had described that in every text related with administration, we find a separate chapter regarding principle of natural justice. One of the basic principles of justice is that no body should be condemned unheard. i.e. Audi alteram partem. So the person against whom allegation are made is entitled to present his case in all possible manner and being so in departmental adjudication every assessee/noticee is entitled for fair hearing. Fair hearing is a right which one most assert and it is definitely not a dole or alms depending upon the generosity of the officer or the department concern. This paper is only a humble attempt reiterate the principles surrounding of the principle of natural justice which evolved in the Indian judicial system over the period of time.
Sec 33A of central excise act defines the adjudication procedure which is as follows:-
“SECTION 33A.Adjudication procedure. — The Adjudicating (1) authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. The (2) Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing :
Provided that no such adjournment shall be granted more than three times to a party during the proceeding.”
The plain reading of the above said section mandates that party (Aseessee/Noticee) is entitled of an opportunity of “being heard”. Now the question is what is meaning of the term “being heard”? The common meaning which is prevailing in departmental adjudication is oral or written submission at the time of personal hearing and by granting this opportunity the formality of being heard is often completed by the adjudicating authority. It unfortunate but it is true that this is only the cosmetic meaning of the term “being heard”, the real meaning lies some where else. The term “being heard” means giving every opportunity to the affected person to contest the allegations level against him and unless that is done the term ‘being heard’ is meaningless in adjudication.
The adjudication means fair and transparent adjudication and it should be done with the sole intention to bring the truth at the floor. The fair adjudication is not possible if principle of natural justice is not integrated in the process of adjudication. The principal of natural justice are meant to ensure fair play and they are squarely applicable in the departmental adjudication [J.K industries Ltd V. CCE 2004 (168) E.L.T 451 ( Tri)]. Some of the principle of natural justice which have evolved over period of time in respect of departmental adjudication are as follow:-
a) Inspection of record :- Noticee should be given a right to inspect the records once investigation is completed and he is further entitled for the copy of the required documents.
[Sanghi Taxtile Processors V. U.O.I-1993(65) E.L.T. 357 (S.C), Kothari Filaments V. CC (Port), Kolkata-2009 (233) E.L.T 289 (SC)].
b) Supply of relied upon documents:- the noticee is entitled for all the documents relied upon by the department against him so that he can properly defendant the charges against him.
c) Return of non-relied upon documents:- The assessee/noticee is entitled for all the non-relied upon documents in possession of department [2006(204) E.L.T. 247 (Bom.)- Silicon Graphics System(India) Pvt Ltd V. UOI, Sec. 24A of the Central excise Rule 2002.]
d) Examination and cross-examination of witness: – Against the general concept that every statement made during the course of any enquiry and proceedings is relevant the truth lies otherwise. Sec 9D of the Central excise Act clearly says that the statement are relevant only if the person who made the statement is dead, cannot be found, prevented by opposite party or whose presence cannot be obtained without further expense or delay. Otherwise the person who made the statement has to be examined before the court and the court has to be form an opinion regarding admissibility of statement and the same is not ipso-facto admissible. (J & K cigarettes Ltd Vs CCE [2009(242) ELT 189].
The division Bench of Hon’ble court of Delhi in J K Cigarette V. CCE , supra has clearly demarcated the boundary and it has held that before any statement is relevant and admissible except in the circumstances mentioned in 9D(a), the adjudicating authority has to be follow the procedure mentioned in the Sec. 9D(b) of Central excise Act. Not only this even if Sec. 9D (a) is invoked by the adjudicating authority there are bound to form an opinion and they are require to give reasons for that. The above said opinion under Sec. 9D is to be communicated to the affected party who may file an appeal against the forming of opinion. It is observed that this mandatory provision of the act has been contemptuously ignored by the adjudicating authorities most of the time.
The next question is about the opportunity of cross-examination and the answer also partly lies in the Section 9D because the term “examined” as mentioned in Sec 9D (b) includes the concept of cross-examination. Even otherwise the courts in India after giving all due regards to the principle of natural justice as it deserves has held that the cross-examination by noticee should be allowed if relevant and it should not be rejected on flimsy grounds [Rathi Espat Ltd V. CCE Meerut. 2001 (129) ELT 701 (Tri-Del), Swadeshi polytex Ltd V CCE Merrut , 2000(122) E.L.T 641 (SC), 2002 E.L.T (143) 21 (SC), 2002 (146) E.L.T 248 (SC)],
e) Speaking order:- the next limb of the principle of natural justice is that the order passed in the adjudication must be speaking one. The order must address the defence taken by the assessee/noticee itself and give cogent reasoning in case of rebuttal of the defence raised. Ch. 13 of the CBEC’s excise manual of supplementary instruction 2005 gives clear instruction in this regards which is as follows:-
“The adjudication order must be speaking order giving clear findings of the adjudicating authority and he shall discuss each point raised by the defence and shall given cogent reasoning in case of rebuttal of such points. The duty demanded and confirmed shall be quantified correctly and the order portion must contain the correct provisions of law under which duly is confirmed and penalty is imposed. Adjudication orders shall be issued under the signature of the adjudicating authority. If confiscation is adjudged during adjudication proceedings, an option shall be given to the owner of the goods to redeem the goods on payment of a fine in lieu of confiscation.
f) Non-relied upon documents and statements:- it is often done during the investigation that all the documents and statements supporting the department is relied upon blindly by the department but any evidence corroborating assessee/noticee is ignored. For the fair play the noticee is entitled all those material supporting their case even if same is not relied upon by the department.
It is really impossible to count all the limbs of the fair play and above mentioned principles is only a show case. The basic thing is during the adjudication the adjudicating authority is required to keep in mind the essence and fragrance of the justice, which is sin-qua-non for keeping faith in the institution of adjudication intact. The high degree of reverence is to be paid to all form of the principal of natural justice because it has always been placed above the codified law The Hon’ble apex court while upholding the reverence of the principal of natural justice has held as follow.
“However, Natural justice is not the justice of the nature where the lion devours the lamb and the tiger feeds upon the antelope. Natural justice is of the ‘higher law of nature’ or ‘natural law’ where the lion and lamb lie down together and the tiger frisks with the antelope.”[1]
[1] Union of India Vs Tulsi Ram Patel (1985) 3 SCC, 398.
About the Author
Advocate: Central Excise, Service Tax & Commercial Laws. I am practicing advocate in the above said areas for the last 12 years. I have wide experience in advicing clients in these areas, leading litigation and appellate proceeding before the adjudicating authority and before CESTAT, High Court & Supreme Court. I am based in Delhi. Presently I am a partner in a Law firm in the name of Rajesh Kumar & Asscoiates. E Mail: custom.excise @ gmail.com Web: www.rajeshkumar.co.in
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I’m currently in my second year of a B.Sc degree in Environmental Studies. I’m really considering a career in environmental law to combine my drive to protect the natural world with my abilities to convince and argue. My interests have always included politics as well so I’d like to get into policy at some levels as well. Does it sound like a good fit for me? And what do they really do?
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