Bhawani Shankar Castings Vs. Commissioner of Central Excise, - Court Judgment

Excerpt:

.....cases, which have been referred by the counsel are these:-baroda pharma (p) ltd. vs. cce vadodara in all those cases, the commissioner (appeals) dismissed the appeal of the assessees under section 35 f of the act non-compliance of the stay order which was passed without hearing them.the tribunal set aside the orders of the commissioner (appeals) in those cases and remanded the matter for fresh decision.therefore following the ratio of the law laid down by the tribunal in the above referred cases, and the facts and circumstances of the present case referred to above, the appeal of the appellants is allowed and the impugned order in appeal, is set aside. the matter is sent back to the commissioner(appeals) for deciding the stay application and thereafter the appeal of the appellants in accordance with the law after hearing them.

Judgment:

1. This appeal has been filed by the appellants M/s. Bhawani Shankar Castings against the impugned order in appeal dated 21.3.2000 passed by the Commissioner (Appeals) vide which he has dismissed the appeal summarily under Section 35 F of the Act for non-compliance with his Stay order dated 7.9.99 requiring them to make pre-deposit of Rs.2 lakhs.

2. The ld. Counsel for the appellants has challenged the validity of the impugned order of the Commissioner (Appeals), on the main ground that the stay order for the non-compliance of which the appeal of the appellant had been dismissed by the Commissioner (Appeals), was passed, without hearing them. Even before the passing of impugned order dismissing the appeal itself, the appellants were not heard by the Commissioner (Appeals).

3. Ld. JDR on the other hand, has not been able to refute this ground of the appellants. He has not disputed that the appellants were neither heard at the time when the stay order was passed by the Commissioner (Appeals) nor even at the time of dismissing their appeal through impugned order in appeal, for non compliance with the said stay order.

4. I have heard both the sides. The bare perusal of the file shows that the Commissioner (Appeals) disposed of the stay application of the appellants which they filed along with the appeal, in their absence and directed them to make pre-deposit of Rs.2 lakhs vide order dated 7.9.99. The appellants moved an application for reconsideration of that order on 22.9.99 but Commissioner (Appeals) without considering their application, proceeded to dismiss their appeal under Section 35 F of the Act through impugned order in appeal. Therefore, the impugned order-in-appeal on the face of it, is not legally sustainable having been passed in violation of principles of natural justice.

5. In similar circumstances, the Tribunal had earlier in number of cases set aside the order of the Commissioner (Appeals) and remanded the matter back for re-decision. Some of those cases, which have been referred by the Counsel are these:-Baroda Pharma (P) Ltd. vs. CCE Vadodara In all those cases, the Commissioner (Appeals) dismissed the appeal of the assessees under Section 35 F of the Act non-compliance of the stay order which was passed without hearing them.The Tribunal set aside the orders of the Commissioner (Appeals) in those cases and remanded the matter for fresh decision.

Therefore following the ratio of the law laid down by the Tribunal in the above referred cases, and the facts and circumstances of the present case referred to above, the appeal of the appellants is allowed and the impugned order in appeal, is set aside. The matter is sent back to the Commissioner(Appeals) for deciding the stay application and thereafter the appeal of the appellants in accordance with the law after hearing them.