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S.L. Peeran, Member (J)
1. These stay applications and appeals arise from the respective orders in appeal passed by the Commissioner (Appeals) dismissing the appeals for non-deposit in terms of Section 35F of the CE Act, 1944. The Commissioner (Appeals) in the three matters did not give the appellants an opportunity of hearing before dismissing the respective stay petitions and directing them to pre-deposit the amounts. The appellants after receipt of the ex parte interim orders filed petition for modification of the orders seeking hearing and also bringing to the notice of the Commissioner (Appeals) for grant of hearing in terms of Section 35F of the Act as non grant of hearing is violative of the principles of natural justice and they cited the Judgment of the Tribunal rendered in the case of Jay Pee Beta Cement v. CCE reported in 1999 (35) RLT 813 : 2000 (90) ECR 335 (T), Annapurna Malleables (P) Ltd. v. CCE as reported in 1999 (35) RLT 971. However, the Commissioner without considering their request dismissed their appeals.
2. The learned Consultant for the appellants submits that non grant of hearing by dismissing the stay petitions is violative of the principles of natural justice and the Tribunal has remanded a large number of such appeals. He also referred to the Judgment of the Madras High Court in the case of ITC and Ors. v. CCE as reported in 2000 (1) ECL 97 wherein the Madras High Court held that granting of hearing before deciding the stay petition is mandatory in terms of Section 35A read with Section 35F of the Act and he seeks remand of the matter to the Commissioner (Appeals). He also submits that the issue pertains to deduction of turnover tax Sales Tax and equalised freight and this very same issue has been decided in their own case as . He submits that the appeals themselves can also be decided at this stage.
3. The learned DR opposes the prayer and submits that the aspect pertaining to the stay petitions is required to be re-argued by the appellants before the Commissioner (Appeals) and during the hearing before the Commissioner (Appeals), various case law relied upon by them can be cited so that the Commissioner can take a view in the matter.
4. On consideration of the submissions made, we notice that the appeals have been dismissed for non compliance with the directions of pre-deposit as per the interim orders passed by the Commissioner (Appeals). Non grant of hearing to the appellants before the dismissal of the stay petitions is violative of the principles of natural justice as held by the Madras High Court in the noted judgement. In view of the above, by granting waiver of pre-deposit and stay of recovery of the amounts involved in these appeals, we take up the appeals and set aside the impugned orders and remand the matter to the Commissioner (Appeals) with a direction that he shall hear the appellants on the prima facie nature of the case on merits as well as their plea of financial hardship and then pass a considered speaking order taking into consideration the plea that the matter is covered by the Judgment noted above. The appeals are allowed by remand.
(Dictated and pronounced in open Court).