ORDER
P.G. Chacko, Member (J)
1. The appellants are not present, nor represented despite notice. We have examined the records and heard the Ld. JC.DR. After carefully considering the grounds of these appeals and the submissions made by Ld. JCDR, we are of the view that these appeals need to be finally disposed of at this stage. Accordingly, we allow the application and take up the appeals for disposal.
2. These appeals are against the orders passed by the Commissioner (Appeals) dismissing the appeals before him, on the sole ground of non-compliance with Section 35F of the Central Excise Act, without looking into the merits of the case. When these parties filed appeals with the Commissioner (Appeals), they had also prayed for waiver of pre-deposit of duty and penalty amounts under Section 35F ibid, duties in respect of Kobe Steels Pvt Ltd. and M/s. Fleet weld India Ltd., and a penalty in respect of Shri D.S. Patel. In an interim order passed by the Commissioner (Appeals), he directed M/s. Kobe Steels Pvt Ltd., to pre-deposit the amount of duty of Rs. 11,19,362/- under Section 35F ibid and granted waiver in respect of the penalty imposed on them. In a separate interim order passed in respect of Fleetweld India Ltd., and Shri Deepak S. Patel, the Commissioner (Appeals) directed pre-deposit of the amount of duty of Rs. 6,05,973/-. That order was silent on the penalty imposed on Shri Deepak S. Patel. The parties failed to comply with the direction of the Commissioner (Appeal), but approached him for extension of time for making the pre-deposit. Extension was accordingly granted by the Commissioner (Appeals). The parties however, failed to deposit the amounts within the extended period also. Subsequently, the Commissioner (Appeals) rejected all the 3 appeals on the ground of non-compliance with the Section 35F. Hence these appeals before us. In all these appeals, the main ground raised by the appellants is violation of natural justice.
3. We note that the direction for pre-deposit of duty was only to M/s. Kobe Steels Pvt Ltd., and M/s. Fleetweld India Ltd. There was no direction to Shri Deepak S Patel for pre-deposit of the amount of penalty imposed on him. Hence there was waiver of pre-deposit of penalty in the case of Shri Deepak S Patel and therefore his appeal should not have been dismissed in the way the Commissioner (Appeals) did. His appeal ought to have been disposed of on merits. The plea of Shri Deepak S Patel that natural justice was denied to him is readily acceptable and, accordingly, we set aside the order passed by the Commissioner (Appeals) against Shri Deepak S Patel and allow the present appeal of Shri Patel by way of remand. The Commissioner (Appeals) shall dispose of his appeal on its merits in accordance with law and the principles of natural justice.
4. In so far as the other two appeals are concerned, we find that those two appellants viz., M/s. Kobe Steels Pvt Ltd., and M/s. Fleetweld India Ltd., did not comply with the direction of the Commissioner (Appeals) to pre-deposit the respective amounts of duty. The parties approached the Commissioner (Appeals) for extension of time and that prayer was granted. Still they failed to make the pre-deposit. Thereafter, they filed applications with the Commissioner (Appeals) praying for modification of the direction for pre-deposit. Copies of those applications are available on record before us and we have perused the same. In those applications, we have not found any fresh ground other than the grounds, which were raised in their original stay applications. Moreover, we note that, on receipt of the interim stay orders of the Commissioner (Appeals), the parties only wanted an extension of time and did not seek any modification of the stay orders. The subsequent application for modification of the stay orders should therefore be held to be a second thought without any bonafides. We are, therefore, of the view that these appellants should pre-deposit the respective amounts of duty with the Commissioner (Appeals) so that their appeals can be heard on merits. We set aside the impugned orders and remand the cases to the Commissioner for disposal of the appeals before him on merits in accordance with law and the principles of natural justice subject to the condition that the appellants deposit the respective amounts of duty within a period of four weeks from the date of receipt of a certified copy of this order and report compliance to the Commissioner (Appeals). When compliance is so reported, the Commissioner (Appeals) shall dispose of the appeals as directed above.
5. All the three appeals are allowed by way of remand.
(Pronounced in Court)