JUDGMENT
Gowri Shankar, Member (Technical)
1. We do not consider that the fact that counsel for the appellant is busy before a part heard matter in Delhi constitute sufficient ground for adjournment, particularly when the matter was last adjourned at the request and the date made known to him. We have therefore decided to proceed with the matter and, after considering the stay application decided to take up the appeal itself with consent of the departmental representative.
2. The appeal is against the order of the Commissioner (Appeals) dismissing the appeal filed before him by the present appellant before us against an order of the Asst. Commissioner. The Commissioner’s order of dismissal is on the ground that the appellant before him did not deposit the entire duty and penalty that it was required to deposit, in terms of Section 35F of the Act, and while he asked it to deposit in his stay order.
3. We are reluctant to go into the merits of the stay order passed by the Commissioner (Appeals). Therefore an order dismissing an appeal for default is not likely to be interfered with. In the present case, we are compelled to find that the order of the Commissioner (Appeals) asking for deposit of the entire amount of duty and penalty is entirely unsustainable for the reason that it is clear that the Commissioner (Appeals) has not applied his mind to the issue at all.
4. The order of the Commissioner (Appeals) consist of three paragraphs. The first paragraph names the applicant, the order appealed against and the amount of duty and penalty and mentions that the stay application has been filed. The third paragraph consists of the Commissioner’s direction for deposit of the amount. Second paragraph which dals with the merits of the appeal reads as follows.
“2. I have considered the submissions made by the appellant in the request for grant of stay/waiver of pre-deposit and also the findings contained in the Order-in-Original. Prima-facie, I find that the issues involved for considerations are not free from doubt and will need to be examined at length on the basis of facts and evidences available on record, and also the additional submissions on facts and law, which may be urged by the appellants in support of their claim during appeal proceedings. Then again, I find that the appellants have not pleaded on financial hardship calling for intervention under Section 35F of the Central Excise Act for grant of stay against collection of duty and penalty.”
5. It will be evident to anyone reading it, the Commissioner (Appeals) has chose not to apply his mind at all. The ground that he applies for depositing full duty can be applied to any stay application before him or anyone else. This is because the paragraph is generally and ambiguously worded. In the point of fact, if the Commissioner found that they were not free from doubt and should be examined at length, the applicant would be entitled to partial waiver fo deposit. It is clear that the Commissioner (Appeals) has chosen not to deal with the submissions made before him. No doubt, the Supreme Court has said in UOI v. Jesus Sales Corporation 1998 (83) ELT 486 it is not necessary to grant hearing in stay applications and other such interim matters. That order also made it clear that the order must deal with the merits. In the case before us, there has neither been a hearing nor dealing on merits. The stay order is not maintainable and the consequential order of dismissal of failure to comply with the stay order.
6. The appeal is accordingly allowed and the impugned order set aside. On the facts of the case, the Commissioner (Appeals) shall hear the appellant on the stay application and pass a speaking order on the application and thereafter proceed to deal with the appeal in accordance with law.