ORDER
S.K. Bhatnagar, Member (T)
1. This is a Stay application filed by the Respondents.
2. At the outset, the learned Departmental Representative raised a preliminary objection stating that the appeal has been filed by the Department against the order of Collector(A). The respondents have neither filed an appeal on their own nor even filed a Cross objection. Under the circumstances, they are not an aggrieved person and in terms of Section 35-F, no stay application can be moved from their side. (The Department itself has not filed any stay application). In the circumstances, it was their contention that the stay application filed by the respondents was not maintainable.
3. The learned Counsel stated that it is correct that they have neither filed an appeal nor a Cross objection in the matter. However, it was their contention that they were still entitled to move the stay application in terms of Section 35-F and were covered by the proviso thereof. It was their submission that by the act of filing of the appeal by the Department, the whole issue gets reopened and therefore, they became the affected party. The Department has already initiated action to recover the amount in terms of the order of the Collector (Appeals) and such a recovery would cause them undue hardship. Hence the prayer.
4. We have considered the submissions of both the sides. We find that in terms of Section 35-F, where an appeal has been filed and the person desirous of appealing was required to deposit the duty demanded or the penalty levied, could make an appropriate prayer for waiver of pre-deposit and it was such a prayer which was required to be considered in terms of the proviso to the said section. In the instant case, the applicants have admittedly not filed any appeal. They have not filed even a cross objection with reference to the Department’s appeal. As such, Section 35-F is not applicable in their case.
5. If in terms of the order of Collector (Appeals), some amount became due to the Department it was open to the Department to proceed in terms of the said order unless the operation thereof was stayed. If the respondent was aggrieved of the order of the Collector (Appeals), it was open to him to have filed an appeal within the time provided by law. It is not possible for us to entertain the request of the applicant (respondent). We concede that the learned Departmental Representative is correct in pointing out that the stay application filed by the respondent was in fact not maintainable in terms of Section 35-F in the aforesaid circumstances.
6. In view of this position, we dismiss the application. However, we accept the alternative prayer by both the sides for an early hearing of the matter and fix the appeal for hearing on 19-2-1990.