Page 44 - ELT_15th July 2020_Vol 373_Part 2

A50 EXCISE LAW TIMES [ Vol. 373

(i) What requirements AA has to be wary of while drafting a SCN?
(ii) What is meant by the phrase “reasonable opportunity”?
(i) While dealing the first question Hon’ble Supreme Court in the case
of Oryx Fisheries Private Limited v. Union of India & Ors. [2011 (266)
E.L.T. 422 (S.C.)], observed that :
“[Para 31] It is of course true that the show cause notice cannot be
read hyper-technically and it is well-settled that it is to be read rea-
sonably. But one thing is clear that while reading a show cause no-
tice the person who is subject to it must get an impression that he
will get an effective opportunity to rebut the allegations contained
in the show cause notice and prove his innocence. If on a reasonable
reading of a show cause notice a person of ordinary prudence gets
the feeling that his reply to the show cause notice will be an empty
ceremony and he will merely knock his head against the impene-
trable wall of prejudged opinion, such a show cause notice does not
commence a fair procedure especially when it is issued in a quasi-
judicial proceeding under a statutory regulation which promises to
give the person proceeded against a reasonable opportunity of de-
fence.”
(ii) The amplitude of the phrase “reasonable opportunity” can be best
understood by perusing following observations of Hon’ble Supreme
Court made in Khem Chand v. The Union of India (UOI) and Ors.
(MANU/SC/0120/1957) :
“24. To summarise : the reasonable opportunity envisaged by the
provision under consideration includes -
(a) An opportunity to deny his guilt and establish his
innocence, which he can only do if he is told what the
charges levelled against him are and the allegations on
which such charges are based;
(b) an opportunity to defend himself by cross-examining
the witnesses produced against him and by examining
himself or any other witnesses in support of his defence;
and finally
(c) an opportunity to make his representation as to why
the proposed punishment should not be inflicted on him,
which he can only do if the competent authority, after the
enquiry is over and after applying his mind to the gravity
or otherwise of the charges proved against the government
servant tentatively proposes to inflict one of the three pun-
ishments and communicates the same to the government
servant.”
Further, it is pertinent to note that as per DGFT Notification No. 39/2019
(RE-2013)/2009-2014, dated 29-8-2013, Joint DGFT does not have absolute power
to pass any suspension order of IEC for the reason that he has to obtain the con-
firmation from Addl. DGFT within 30 days from the date of passing of such or-
der.
At this juncture, it must also be remembered that procedure stipulated in
Section 8 of the FTDR are not mere technical procedure and any suspension
order passed without observing the procedure prescribed thereunder will tanta-
EXCISE LAW TIMES  15th July 2020  44