ORDER
S.L. Peeran, Member (J)
1. The stay application and appeal arise from Order-in-Appeal No. 153/99 dt. 12.11.99 passed by Commissioner (Appeals) Madras holding that appellants could not be granted personal hearing in terms of Apex Court judgment rendered in the case of Jesus Sales Corporation Ltd. as in and as they had not pre-deposited the amount of Rs. 506012 in terms of his interim order, therefore appeal was dismissed Under Section 35F of the Act.
2. On the issue of non-giving of hearing, the Tribunal has already remanded the matter to Commissioner (Appeals) holding that such orders are not sustainable as the said Apex Court’s judgment was not applicable to proceedings under Central Excise Act in terms of Section 35 A of the Act. However, the Commissioner does not seem to apply the ratio of the Tribunal judgment and there is clear contempt shown by Commissioner (Appeals) with regard to this aspect of the matter. Though by several orders, the Commissioner (Appeals) was reminded about the mandatory provisions thereby he was asked to submit to the judicial discipline of the Tribunal, however, regretfully, the Commissioner (Appeals) on his own disregarded these judgments. Hence, after having given several opportunities, we are constrained to make this observation only in the interest of justice so as to keep this supremacy of law and to uphold the hierarchy of the CEGAT’s powers.
3. In view of this clear violation of Tribunal’s direction, the impugned order is liable to be set aside.
4. At this stage, Ld Counsel submit that there is some dispute on the sums to be deducted. However, the Commissioner (Appeals) has not taken into consideration the pleas of deductions which the appellants are entitled Under Section 4(4)(d)(ii) of the Act. Further, with regard to Modvat credit availment, which is required to have been granted in the matter, he submits that appellants are facing financial hardship and if these pleas are taken, then the duty amount would be drastically reduced. He submits appellants are prepared to offer the pre-deposit amount of Rs. 2 Lakhs in the matter.
5. Ld.DR seriously seeks for expunge of the remarks against the Commissioner (Appeals) on the plea that the Commissioner (Appeals) has been consistent to take the view in view of his understanding the Apex Court and he cannot be faulted and the Tribunal has to take a lenient view in this matter.
6. However, on consideration of this submission, we are not satisfied with this plea as Section 35A has been clearly analysed by us in large number of judgments. If the Commissioner (Appeals) was aggrieved with CEGAT’s order on this point, the Revenue could have taken up the matter before the Apex Court. However, not having done, the Commissioner (Appeals) ought to have submitted to the judicial discipline of this Tribunal.
7. Ld.DR points out that the Commissioner (Appeals) has attempted to give a detailed finding as to why the amount is required to be pre-deposited as there was no financial hardship or merits in this case. Therefore his order of dismissal Under Section 35F is proper and correct which cannot be faulted.
8. On careful consideration of the submissions, and on a perusal of the order, we notice that appellants had taken a very clear defence pertaining to availability of Modvat credit as well as with regard to deductions that are available Under Section 4(4)(d)(ii). This aspect of the matter has not been touched at all and therefore there is clear violation of principles of natural justice. In that view of the matter, while accepting the prayer of pre-deposit of Rs. 2,00,000 (Rupees two lakhs only) which should be done within 2 months from the date of receipt of this order, we take up the appeal itself and remand the matter to the Commissioner (Appeals) with the direction that he shall not insist on any further pre-deposit in the matter and take up the appeal and decide the case on merits on appellants’ producing the proof of deposit. A copy of this order shall be marked by Registry to the Chief Commissioner by name. Ordered accordingly.
