ORDER
P.G. Chacko
1. In this application, the applicants pray for waiver of pre-deposit of the duty amount of Rs.2,77,389/- and the penalty amount of Rs.20,000/- and for stay of recovery of the said amounts.
2. Perused the records and heard both sides.
3. The aforesaid amount of duty was directed to be paid as per the impugned order which was passed in adjudication of a show-cause notice which proposed to recover the duty on goods alleged to have been removed clandestinely from the applicants’ factory during the period 25.5.92 to 12.6.92. The applicants have now approached the Tribunal in the second round of litigation in respect of the said show-cause notice. In the first round, they had obtained an order of remand from the Tribunal. By the said remand order, the Tribunal had directed the adjudicating authority to adjudicate the show-causes notice afresh after a second verification of the records and consideration of the party’s defence in the light of the documentary evidence on record. The main grievance of the applicants in the present round of litigation is that the adjudicating authority did not consider the statutory and private documents are summed from their factory by the officers of Central Excise, in terms of the directions contained in the Tribunal’s remade order. They have a further grievance that a reasonable opportunity of personal hearing was not given by the adjudicating authority. Though the matter was posted to 11.10.99 for personal hearing, the applicants could not attend on account of their Excise official being on leave. the applicants, on that ground, requested for an adjournment of the hearing by sending a telegram to the adjudicating authority on 1.10.99. The authority, however, turned down the request and proceeded to dispose of the matter, and passed order of adjudication confirming the demand of duty and imposing penalty. The applicants preferred appeal against that order to the Commissioner (Appeals). They also filed a stay application with the Commissioner (Appeals). The stay application was imposed of by the lower appellate authority by “Interim Stay Order” dated 27.7.2000 directing the party to deposit the entire dues within 21 days. That direction was not complied with by the appeal of the party on the ground of non-compliance with the requirement of pre-deposit under Section 35F of the Central Excise Act. The present appeal before the Tribunal is against the order of the Commissioner (Appeals).
4. Ld. advocate, Sh. J.S. Agarwal has reiterated the grounds of the appeal. He submits that, on such grounds, the applicants have a strong prima facie case which call for complete waive of pre-deposit. Ld. SDR, Sh. A.K. Jain opposes. He submits that the lower appellate authority had no option other than rejecting the party’s appeal it the absence of proof of compliance with the direction of that authority for pre-deposit of the duty and penalty amounts. He further submits that the applicants have no financial hardships.
5. I have examined the submissions. This application does not plead any financial hardships. The entire case of the applicants as reiterated by Id. advocate in on the merits of the case. On merits, I observe that the primary question in the appeal is whether the original authority considered all the statutory and private records resumed by departmental office from the appellant factory, in terms of the directions contained in the Tribunal’s remade order. This question would call for examination of all the relevant records, which exercise can appropriately be done at final hearing stage. For the present, it is obvious from the order of the adjudicating authority that the request of the party of adjournment of personal hearing was not granted,even though such hearing was quite necessary for proper appreciation of the documentary evidence of the case in terms of the remand order of the Tribunal. It also appears that the request for adjournment was not properly considered by the original authority. Thus, there appears to be an element of breach of natural justice the original proceedings, apart from want of due compliance with the remade order. The appeal of the party against the order of adjudication was rejected on a technical ground without looking into the merits of the case. The applicants appear to have an arguable case on the ground of negation of natural justice as well as on the aforesaid ground that the adjudication was not in due compliance with the remand order. However, there is not case for complete waiver of pre-deposit as no plea of financial headships has been raised in this application. Therefore, I direct the applicants to deposit an amount of Rs.1 lakh under Section 35F of the Act within a period of six weeks and report compliance on 18.7.2001.
(Pronouncedin open Court)