( 1 ) BY this petition, the order dated 31-1-1999 passed under Section 35-f regarding waiver of pre-deposit and the stay of recovery of excise duty have been assailed. The writ petition No. 3696 of 1998 which was filed, came to be disposed of, on 7-12-1998. A contention was raised that the order passed by the assistant commissioner of central excise dated 13-11-1998 is against the principles of natural Justice and the documents were not confronted nor attention of the petitioner was drawn and the writ petition be entertained. This court found that the appellate authority has the jurisdiction to entertain the appeal even in those cases where the principles of natural Justice have been violated and since the matter has to be examined on the basis of record and correspondence, the petitioner was directed to file an appeal. The application for stay was also directed to be disposed of within two weeks from the date of the submission of copy of judgment. The commissioner of customs and central excise (appeals) considered the various questions raised by the petitioner including those documents which were relied on by the adjudicating authority and a copy of which was not provided. It is observed that, these documents are internal office documents and the existence/authenticity of these documents has not been disputed. It was found that a prima facie case in favour of the assistant commissioner supported by documentary evidence under the Provisions of law has been made out. Since the issues to be examined involve complicated question of fact and the intricacies of inter company dealings belonging to one group, a detailed examination at the stage of disposal of the appeal was considered necessary. It was found that the order of the assistant commissioner is not void ab initio. The financial difficulties has also been taken into consideration and it was directed that the petitioner should deposit a sum of Rs. 4,50,00,000/- (rupees four crores fifty lakhs only) out of the total demand of Rs. 9,10,98,179/- within 90 days from the date of receipt of the order.

( 2 ) LEARNED counsel for the petitioner has drawn my attention to the order of the assistant commissioner dated 13-11-1998, wherein at para 27 of the Order, it was found that these documents are internal documents and not new to them and the same have been considered in the said case as the isue being finalisation of provisional assessment, a show-cause notice was issued to the petitioner along with five documents referred therein. Assessable value was sought to be fixed at the price at which the goods are sold by bpl to their dealers. Reliance is placed on the judgment given in the case of state of Uttar Pradesh v mohammad nooh , wherein, it was observed that,"if an inferior or court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in and manner which is contrary to the rules of natural Justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, quite properly exercise its power to issue the prerogative writ or certiorari to correct the error". it is stated that the order passed in violation of principles of natural Justice is a nullity and can be ignored with impunity. Reliance is placed on the judgment given by Madras High Court in the case of nuwood private limited, Madras v superintendent of central excise. Reliance is placed on the judgment in aluminium corporation of India v union of India and others , wherein, it was observed that if the reliance is placed on some report, without providing an opportunity to the company to explain or to make its comment, then, it cannot be considered to be a fair hearing. A fair hearing means a hearing which is adequate for the purposes of bringing before the officer who makes the decision all the relevant submissions pertaining to the case. If fresh factual evi