ORDER
V.K. Ashtana, Member (T)
1. This is an appeal aqainst Order-in-Appeal No. C. Cus. 826/99, dated 28-12-99 wherein the ld. Commissioner (Appeals) has held that since the appellants had not pre-deposited the entire amount of duty demanded, therefore the appeal has been dismissed under Section 129E of the Customs Act.
2. Heard Shri B. Satish Sundar, ld. Advocate who submits that the matter concerns the denial of request for extension of bonded period with regard to the various types of liquors imported by the appellants who are Ship Chandlers. He submits that the goods are still in the private warehouse which is operated under Customs’ control. He further submits that the ld. Commissioner (Appeals) had passed an Interim order requiring that the entire duty demanded should be pre deposited without even giving opportunity of hearing to the appellants. Since the goods were already under Customs custody jointly in the private bonded warehouse, therefore the appellants were not in a position to pre deposit these amounts and consequently the appeal was dismissed as mentioned above and the appellants have been denied their substantive right of their appeal being heard on merits by the First Appellate Authority. He further submits that since the goods are still available under Customs custody, therefore there is no need to order any pre-deposit as Revenue is safeguarded. He also submits that on merits he has, prima facie, a very strong case which has not been considered at all by the lower appellate authority.
3. Heard ld. D.R. who submits that the bond period having expired, notice to demand duty under Section 72 was the right of Revenue and therefore the demand confirmed is legally correct and hence the appellants be put to terms. He reiterates the order impugned.
4. I have carefully considered the rival submissions and records of the case. I find that there has been total denial of principles of natural justice by the First Appellate Authority in not granting personal hearing to the appellants before adjudicating on the quantum of pre-deposit to be made. This matter was recently considered by the Hon’ble Madras High Court in the case of ITC Ltd. (Packaging and Printing Division) and Ors. as in 2001 (127) E.L.T. 338 (Mad.)(Madras) wherein the Hon’ble High Court had held that the Commissioner (Appeals) were bound to give hearing of the application of stay pending before them and such a rejection without hearing which ultimately leads to denial of remedy of appeal itself is legally not correct. The Hon’ble High Court has quashed the Board’s Circular No. 459/16/99 dated 30-3-99 which had directed the Commissioner (Appeals) to adjudicate on pre deposits without giving personal hearing. In view of the above judgement of Hon’ble High Court, I find that the lower appellate authority has not ensured observence of principles of natural justice in the matter. I also find that on a prima facie consideration, there is great force in ld. Advocates submissions that since the goods are still in the bonded warehouse which jointly under the custody of the Department and the appellants, therefore the entire Revenue is properly secured and hence their application for full waiver and stay merits consideration. It has been the practice of this Tribunal to allow waiver and stay in cases where the goods of high value are still under Customs control as the duty element is covered by these goods and the interest of Revenue is secured. In this case also, a similar situation exists. Therefore, I order waiver of the entire amount to be pre deposited and stay of recovery thereof during the pendency of this appeal before this Tribunal as well as before the ld. Commissioner (Appeals) to whom this matters are remanded. Since the appeal lies on a short compass, I proceed to consider the appeal itself and in view of the denial of principles of natural justice, I set aside the order impugned and remand the matter to the ld. Commissioner (Appeals) for a de novo consideration without insisting on any pre-deposit of the amounts in view of orders above. Thus the appeal is allowed by way of remand.