ORDER
S.L. Peeran, Member (J)
1. In this stay application, the applicant has prayed for waiver of pre-deposit of Rs. 86,58,637/-, which had been confirmed by an interim order No. 155/98 dated 24.6.1998 under Section 35F of the Commissioner, wherein he had not discussed about the financial status of the appellants factory, despite recording in para 2 of the said order that the factory is closed since last eight months and that they have absolute financial difficulties. He merely accepted the Assistant Commissioner’s findings on finalisation of the assessment of RT 12s without looking into several grounds raised by the applicants in the stay application. As the appellants have not complied with the terms of interim order, therefore, vide Order-in-Appeal No. 941/98 dated 30.12.1998, he dismissed the appeal under provisions of Section 35F of the Act.
2. The learned advocate points out that the Commissioner in the interim order has not given any findings on the acute financial difficulties pleaded and moreover, the factory had been closed and the unit has been declared as a sick. He further submits that the Assistant Commissioner had violated the principles of natural justice in relying upon the subsequent test results, which had been challenged by the appellants and the appellants had decided to cross-examine the Chemical Engineer. He submits that even by the latest rulings, the Hon’ble Apex Court observed that in cases where the industries have been declared as sick by the BIFR or where the factories are closed, then prima facie waiver is required to be considered. He therefore, seeks for remand of the matter for re-consideration of their stay application. He also produces a copy of the balance sheet as on 31st March, 1999 to show about the loss of more than 3.84 crores. He also points out from the provisional balance sheet that the appellants do not have any cash or bank balance. The provisional balance sheet shows the cash balance of Rs. 5,332/-.
3. The learned D.R. points out that the appellants are required to pre-deposit some amounts to safeguard the revenue interest in terms of the provisions of Section 35F of the Act. Even at this stage, the learned D.R. points out that the matter cannot be remanded unless pre-deposit is made in this matter. He points out that the Assistant Commissioner had relied on the test results which are against the appellants and they are not entitled to the benefit of Notification No. 99/93 and therefore, prima facie the Assistant Commissioner order is sustainable and as the aspect is arguable, they are required to pre-deposit at least 50% of the amount in the matter.
4. On a careful consideration of the submissions, we notice that the aspect pertaining to financial hardships and about the unit being closed and the appellants having registered with BIFR has not been considered by the Commissioner. It is now well settled that the aspect pertaining to financial hardships is required to be considered at the time of hearing of application under Section 35F of the Act for pre-deposit. As there is a violation in this aspect of the matter, while granting waiver of pre-deposit and stay of its recovery, we set aside the impugned order and remand the matter to the Commissioner (Appeals) for reconsideration of their stay application under Section 35F of the Act and pass an interim order thereafter, after taking into consideration of all other grounds taken by the appellants in the appeal and the stay application. The appellants shall be heard in the matter.
5. The appeal is allowed by way of remand.
(Pronounced and dictated in the open court).