ORDER :

1. Delay condoned.

2. Leave granted.

3. This appeal, by special leave, is directed against the judgment and order passed by the High Court of Judicature of Bombay in Writ Petition No. 1718 of 2003, dated 23-2-2011. By the impugned judgment and order, the High Court has set aside the order passed by the Development Commissioner, (Appellant No. 2), dated 4-6-2003.

4. The facts in brief are as follows :- The Respondent No. 1 - M/s. Hanil Era Textiles Ltd. is a 100% export oriented unit in textile sector. The Government had introduced a policy by which 100% export oriented unit is entitled to sell certain percentage of its produce in the Domestic Tariff Area ("the DTA" for short) after obtaining permission of the Development Commissioner. Thereafter, Respondent No. 1 applied for the grant of permission to the Appellant No. 2 for sale of its produce in the DTA for the period commencing from 1-7-1996 to 30-6-1997. The Appellant No. 2 granted permission allowing the DTA sale by its order dated 29-1-2008. Subsequently, the Respondent No. 2 also passed a fresh order granting the DTA sale permission for the year 1997-1998 and 1999-2000. On 4-6-2003, the Appellant No. 2 passed an order reviewing its earlier orders for the year 1997-1998, 1999-2000 and 1996-1997 respectively and cancelled the DTA permission for few years and also reduced the percentage of the production which could be sold in the DTA.

5. It is the correctness or otherwise of the order passed in review dated 4-6-2003 which was in question before the High Court. The High Court has come to the conclusion that the Development Commissioner is not the competent authority to review its own order and in absence of express power, authority cannot confer power of review on itself. Therefore, the Development Commissioner could not have reviewed the order when the power to review is with the Ministry of Commerce and Industry. Accordingly, the High Court has set aside the order passed by the Appellant No. 2, dated 4-6-2003.

6. Being aggrieved by the order passed by the High Court, the appellants are before us in this appeal.

7. Shri P.P. Malhotra, learned Additional Solicitor General appearing for the appellant would contend that the High Court was not justified in holding that the Development Commissioner could not have reviewed its earlier order since the power to review lies with the Ministry of Commerce and Industry.

8. Per Contra, Shri C.A. Sundram, learned senior counsel appearing for the respondents would submit that at present he would not intend to go into the question as to whether the Development Commissioner has the power to review or not. The learned counsel would only submit that before passing an order of review the authority concerned had not issued a show cause notice to the respondent assessee(s).

9. In view of the statement made by Shri Sundaram, we are of the opinion that for the purpose of disposal of this appeal we need not have to pass an order on the issue as to whether the Development Commissioner has the power to review its own order passed earlier.

10. In the instant case, it is not in dispute nor it can be disputed by the Revenue that before passing the review order the Development Commissioner had not issued a show cause notice to the assessee(s) inter alia asking it to show cause as to why the order passed earlier should not be reviewed. In our view, the omission on the part of the Development Commissioner would go to the fundamentals in the sense that no order could be passed against a person without issuing a show cause notice to him/it. This would be in violation of the principles of natural justice and also infringe Article 14 of the Constitution of India. Audi Alteram Partem, as the basic principle of natural justice ensures an opportunity of fair hearing to the parties. Issuance of a show cause notice is a part and parcel of the aforesaid principle which provides that the parties are in a position to defend themselves adequately; after being aware of