Page 106 - ELT_15th August 2020_Vol 373_Part 4

440 EXCISE LAW TIMES [ Vol. 373

was addressed to the Company and all its Directors, the reply was given only by
the Company Secretary and none of the Directors has given any reply. The notice
dated 19-2-2001 was issued by the Deputy Director, Enforcement Directorate to
decide as to whether the adjudication proceedings as contemplated in Section 51
should be held against the Directors for contravention. When the Deputy Direc-
tor decided to hold the adjudication proceedings under Section 51 reply given in
response to the notice dated 8-10-2003 was statutorily required to be considered
under Section 51 and the said reply could not have been ignored or knocked
down by an erroneous assumption that it was an afterthought as has been done
by the High Court. 29-10-2003 was the date fixed by the adjudicating officer for
personal hearing of the Directors. The appellant had not submitted any reply to
show cause notice dated 19-2-2001 which though was addressed to the Company
and all Directors and the reply was sent only by the Company Secretary on 26-3-
2001. The representation dated 29-10-2003 was the first representation submitted
by the appellant before the adjudicating officer during course of personal hear-
ing. What is said by a person who is called for personal hearing even though giv-
en in the form of written representation dated 29-10-2003 required to be consid-
ered by the adjudicating officer otherwise the personal hearing shall become an
empty formality and meaningless, specially when what was said by the appellant
in his representation dated 29-10-2003 in no manner contradicted the reply 26-3-
2001 sent by the Company Secretary. We, thus, are of the considered opinion that
written representation dated 29-10-2003 submitted by appellant required due
consideration and the High Court erred in discarding it as an afterthought.
Point No. 2
17. We may further note that the High Court in its judgment has ob-
served that affidavit relied upon by the appellant dated 4-7-2003 of the Company
Secretary had not been filed either before the Adjudicating Authority or the Ap-
pellate Tribunal nor any such plea was taken in the earlier communications. This
has been observed in paragraph 17 of the impugned judgment, which is to the
following effect :
“17. It was only as an afterthought and later on that the petitioner in his
subsequent reply dated 29-10-2003 took up a plea that he was only a part
time director and relied upon an affidavit dated 4-7-2003 of the Company
Secretary Mukesh Dugar which even otherwise does not appear to have
been filed either before the Adjudicating Authority or the Appellate Tribu-
nal. No such plea had been taken in any of the earlier communications.”
18. The above view of the High Court is neither correct nor based on
materials on the record.
19. The adjudicating officer in its order dated 31-3-2004 has noted the
reply dated 29-10-2003 on behalf of the appellant. The reply dated 29-10-2003 has
been brought on the record of the paper book as Annexure P-4. In paragraph
10(1) of the reply dated 29-10-2003, the affidavit filed by the Company Secretary
has been relied which was also enclosed with the reply as Annexure “C”. Affida-
vit of the Company Secretary dated 4-7-2003 which was enclosed with the reply
was to the following effect :
“AFFIDAVIT
I, Mukesh Dugar Son of Sh. S.R. Dugar and presently the Company Secre-
tary & Head - Legal of Xerox Modicorp Limited having its registered office

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