Adjournment - One… Two… Three… Gone ?

March 20,2018
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K. Vaitheeswaran, Advocate

Recently, it is seen that Adjudicating Authorities as well as Appellate Authorities are issuing notice of hearing in which three dates are specified.  In some cases, the dates are even successive dates.  The understanding appears to be that the Assessee or the Counsel or the Representative can appear on any of those dates at the time mentioned but has to appear by the last date mentioned therein. This apparently is the format in which the concept of three adjournments mandated by law is being implemented.  In case a person fails to appear on the last date mentioned therein or seeks an adjournment on that date there is a refusal on the ground of exhaustion of all adjournments.

Section 33A(2) of the Central Excise Act, 1944 deals with adjudication procedure and the authority at any stage may adjourn the hearing if sufficient cause is shown.  The proviso provides that no such adjournment shall be granted more than three times to a party during the proceedings.  A similar proviso can be found in Section 35(1A) of the Central Excise Act in the context of appeals to Commissioner (Appeals).  The procedure is the same even under the Finance Act, 1994.

The objective of introduction of Section 33A and Section 35(1A) by Finance (No.2) Act, 2004 was to ensure finality to proceedings and to avoid perpetual adjournments.  The Parliament had thus contemplated and provided for three adjournments.  Normally, one would visualize that a notice would be issued fixing a date for hearing and the assessee or his representative would conduct that case on that date or seek adjournment through a letter.  Generally, the adjournments are sought to collate data, produce records, prepare submissions or on account of ill health of the assessee or its representative or the inability for the counsel or representative to attend on account of travel or other litigation matters posted on the same date.

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