ORDER
Archana Wadhwa, Member (J)
1. After dispensing with the condition of pre-deposit of duty and penalty we proceed to decide the appeals themselves inasmuch as the Commissioner (Appeals) has, dismissed the appeals for non-compliance with the stay order passed by him.
2. It is seen that vide his stay order dated 18/07/2007, Commissioner (Appeals) directed the appellants to deposit the entire duty amount of Rs. 11.22 lakhs approximately and 25% of the penalty imposed upon them and the entire duty amount of Rs. 5.97 lakhs approximately in the other appeal along with 25% of penalty.
3. The appellants thereafter filed a modification application dated 30/06/2007 with a prayer to modify the stay order based upon the Tribunal’s judgment in the case of Homa Engineering Works v. CCE, Mumbai 2007 (81) RLT 313 (CESTAT-Mum), which according to the appellants is fully applicable to the facts of their case. However, instead of passing orders on the said modification application, Commissioner (Appeals) vide his present impugned order observed that no modification in the stay order is required and he proceeded ahead to dismiss the appeals themselves for non-compliance.
4. We find that the said conduct of the appellate authority is not in accordance with the judicial precedent. The disposal of the modification application as also the dismissal of the appeals on that ground vide a common order is not justified. The proper course would have been to hear the appellants on the modification, pass appropriate order on the same and in case of rejection to give some more time to the appellants to deposit the amount and then to decide the appeal on merits. The appellants reliance on the Tribunal decision in the case of Suvarna Fibrotech Private Limited v. Commissioner of Central Excise, Pune laying down that it is obligatory on the appellate authority to pass proper orders on the modification application after hearing them is apt.
5. In view of the foregoing, we set aside the impugned order, remand the matter to the Commissioner (Appeals) for considering the modification application and passing proper orders thereof. Needless to say that while passing orders on the application, the appellate authority would take into consideration the law declared by the Tribunal in the case of Homa Engineering Works v. CCE, Mumbai referred supra as also in the latter judgment of the Tribunal in the case of Velji P. and Sons (Agencies) Pvt. Ltd. and Anr. v. CCE, Bhavnagar 2007 (82) RLT 678 (CESTAT-Ahbad.).
The appeals and stay petitions are disposed of in the above terms.
(Dictated/Pronounced in Court)