ORDER
P.G. Chacko, Member (J)
1. The brief facts of the case are as under :- The jurisdictional Additional Commissioner of Central Excise had, in adjudication of a dispute between the appellants and the department on admissibility of Modvat credit on certain goods treated by the assessee as capital goods under Rule 57Q of the Central Excise Rules, passed an order against the assessee denying them Modvat credit amounting over to Rs. 7 lakhs under Rule 57U and imposing on them a penalty of Rs.30,000/- under Rule 173Q. The aggrieved party preferred appeal to the Commissioner (Appeals). They also filed therein an application under Section 35F of the Central Excise Act, 1944 praying for waiver of pre-deposit of the duty and penalty amounts and for stay of recovery thereof, pending the appeal. In that stay application, the applicants had, inter alia, stated that their unit had already been registered with the Board for Industrial and Financial Reconstruction (BIFR). At the hearing stage of the application, the applicants filed written submissions with the appellate authority, wherein they, inter alia, stated that their unit had since been declared sick by the BIFR. After affording an opportunity of being heard, to the party, the Commissioner (Appeals) granted waiver of pre-deposit to the extent of 60% of the amount involved and directed the party to deposit the balance 40% within a period of three weeks from the date of receipt of the order. The ‘Interim Stay Order’ dated 8-3-2000 containing such direction was received by the party on 10-3-2000. As no proof of pre-deposit in terms of the ‘Interim Stay Order’ was forthcoming, the lower appellate authority took up the appeal for final disposal and, by order dated 28-4-2000/3-5-2000, rejected the appeal on the ground of non-compliance with the requirement of pre-deposit under Section 35F ibid without going into the merits of the case. This order of the Commissioner (Appeals) is under challenge in the present appeal.
2. Examined the records and heard both sides. Ld. Counsel for the appellants submits that the order of the Commissioner (Appeals) cannot be sustained as the same is violative of the principles of natural justice. According to him, before rejecting the appeal on the ground of non-compliance with Section 35F, the lower appellate authority ought to have directed the appellants to show cause why the appeal should not be rejected on such ground. In this connection, Id. Counsel has relied on an earlier order of this Bench which was passed in a case involving apparently similar circumstances. The order relied “upon is Final Order No. A/1575/2000-NB(S) passed in Appeal No. E/1113/2000/NB(S). Ld. JDR, Sh. S.C. Pushkarna reiterates the observations contained in the impugned order.
3. There is no dispute of the fact that no notice of hearing on the appeal was issued to the appellants before the Commissioner (Appeals) took up the appeal for final disposal. The plea of violation of natural justice has thus gone uncontested. It is further noted that, while passing the ‘Interim Stay Order’ dated 8-3-2000, the lower appellate authority did not apparently take into account the assessee’s plea that their unit had been declared sick by the BIFR. There is no indication of this plea having been considered by the lower appellate authority.
4. In the above circumstances, I set aside the impugned order and allow the present appeal by way of remand, directing the Commissioner (Appeals) to dispose of the assessee’s appeal before him on its merits in accordance with law and the principles of natural justice. The ‘Interim Stay Order’, which discloses gross non-application of mind to the industrially sick character of the Company, also requires to be set aside. I do so and direct the Commissioner to consider the assessee’s stay application afresh and dispose of the same by a speaking order after affording a reasonable opportunity of being heard, to the party. The final disposal of the appeal as directed above will be subject to the results of the stay application.