Harsha Devani, J.

1. Rule. Ms. Avani Mehta, learned senior standing counsel waives service of notice of rule on behalf of the respondents. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing.

2. By this petition under Article 226 of Constitution of India, the petitioners have challenged the order-in-original dated 29.1.2016 passed by the Commissioner of Customs and Central Excise, Surat-II, whereby the adjudicating authority has passed an ex parte order confirming the proposals under the show cause notice dated 23.01.2006.

3. The first petitioner company is a 100% EOU engaged in the manufacture of processed/dyed and/or printed fabrics/sarees/dress materials and other fabrics and the second petitioner is a Director of the first petitioner company. The petitioners' premises came to be visited by the Central Excise officers in January and March 2001, pursuant to which, a show cause notice dated 23.01.2006 came to be issued for recovery of duty. The adjudicating authority passed an order-in-original confirming the demand, which order came to be challenged by the petitioners before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "the Tribunal") on the ground of violation of the principles of natural justice, as the panchnama was tampered with and no cross-examination was granted. The Tribunal allowed the appeal and the matter came to be remanded to the adjudicating authority to allow cross-examination. Pursuant thereto, the petitioners submitted a list of three persons whom they wanted to cross-examine. It appears that after two of the witnesses were cross-examined, the adjudicating authority, vide letter dated 9.9.2015, fixed the matter for final hearing on 22.9.2015 or 29.9.2015 or 6.10.2015. It is the case of the petitioners that their unit was closed and transferred and they did not receive the said communication and, therefore, could not attend the hearing. After a period of four months, an ex parte order came to be passed on 29.01.2016 confirming the duty liability. Being aggrieved, the petitioners have filed the present petition.

4. Mr. Devan Parikh, Senior Advocate, learned counsel with Mr. Nirav Shah, learned advocate for the petitioner submitted that pursuant to the order of remand passed by the Tribunal, the petitioner had sought permission to examine three witnesses which was granted by the adjudicating authority. However, after two witnesses were examined, the adjudicating authority issued a notice for personal hearing fixing three dates of hearing. It was submitted that on earlier occasions, the notices were also marked to the learned advocate appearing on behalf of the petitioners before the adjudicating authority, however, the notice for personal hearing was sent to the address of the unit which was transferred and closed and no copy was marked to the advocate. Under the circumstances, on account of non-receipt of the notice for personal hearing, the petitioners could not attend the hearing and after a period of four months, the adjudicating authority passed an ex parte order.

4.1 The learned counsel for the petitioners invited the attention of the court to the provisions of section 37C of the Central Excise Act, 1944 (hereinafter referred to as "the Act"), to point out that in view of the provisions of sub-section (1) thereof, any decision or order passed or any summons or notices issued under the Act or the rules, is required to be served by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs to the person to whom it is intended or his authorised agent, if any. It was submitted that in the facts of the present case, the notice for personal hearing has not been sent by registered post and that, according to the respondents, the same has been sent by speed post