ORDER
Shri S.L. Peeran
The stay application and appeal were taken up together for disposal as the issue lies in a short compass in as much as that the appellants have stated that there is violation of principles of natural justice in as much as that the Commissioner (Appeals) has dismissed their appeal under Section 35 F of the Act for non compliance of his interim order without granting any opportunity of hearing.
2. It is stated by Ld. Advocate that by their letters to the Commissioner they had been asking for personal hearing. They had also produced Annual report as on 31st Dec. 1998 to show that they had a carry forward loss of Rs.772.95 lakhs. They had also stated in their replies that they had not wrongly availed the Modvat credit in respect of capital goods as they had taken the capital goods on a proper lease and the Order-in-Original was not a correct order. Ld. counsel submits that they have a very strong prima facie case both on merits and financial hardship and they would have been in a position to convince the Commissioner had he given a personal hearing. The finding in the dismissal order that they had merely asked for waiver and there is no mention of personal hearing is not correct. He refers to the correspondence with Commissioner (Appeals) which is annexed to the paper book wherein they had asked specifically for grant of personal hearing. He submits that similar orders passed by the same Commissioner (Appeals) without granting personal hearing have all been remanded by this bench. He submits that the Madras High Court in the case of ITC Ltd. Vs. CCE (2000 (1) ECL 91 took up this very issue of disposal of stay petition without granting a personal hearing and have held that such proceedings are violative of principles of natural justice. He submits that in view of this judgment and Tribunal having remanded similar cases, the stay application and appeal be remanded to the Commissioner (Appeals) for de novo consideration.
3. Heard Ld. SDR who points out that appellants were given several opportunities to appear but they have not done so. The Commissioner has considered their prayer for waiver and out of approximately Rs.26,00,000/-, he had directed them to pre deposit only Rs.5,00,000/- and therefore it cannot be said that the order of pre deposit was unjust and dismissal was violative of principles of natural justice.
4. On a careful consideration of the submission, we notice that the appellants have been insisting for a personal hearing. Although the Commissioner has taken their submissions while directing them to pre deposit granting considerable waiver, however, the Madras High Court has held that grant of personal hearing on request made by party is in keeping with the principles of natural justice. Similar appeals have all been remanded for de novo consideration to the Commissioner (Appeals). In view of this position, while allowing the stay application, we take up the matter and remand the same to the Commissioner (Appeals) for de novo consideration with a specific direction that the Commissioner shall grant an opportunity of hearing by issue of notice to the appellants and to their counsel. The appellants shall be heard in the stay application pending before the Commissioner. Ordered accordingly.
5. Ld. Counsel at this stage submits that a direction be given to Commissioner to take their matter expeditiously as their factory is under closure. The Commissioner (Appeals) shall grant a personal hearing to the appellants expeditiously to hear the stay application and appeal, on remand.
(Dictated & pronounced in open Court)