1. These stay applications filed along with appeals challenge the order of Commissioner of Central Excise made on 29-8-2006. This matter had come up twice before this Tribunal, when the Tribunal had ordered de novo adjudication and remanded the matter to the Commissioner. When the matter came up, the learned Advocate for the applicants mainly relies upon the following two grounds, which have been overlooked by the original authority: (i) The request made by the appellants for cross-examining persons namely, Shri Ganesh Mathur, Shri G.C. Bahuguna and Sh. Mahesh Sharma was denied by the learned Commissioner.
[It was argued that as the entire case was based on their statements the Commissioner had erred by denying the opportunity of cross-examining these persons on the flippant reason that the Tribunal had not given such directions to him].
(ii) The sanctioned scheme in BIFR case No. 34/92 had clear provisions not to insist on duty or penalty in the subject case.
[According to Clause (xv) thereof "Central Excise & Customs should not to ask for any payment from the recovery and individuals against Order No. v[36.02]15/off/38/98/2/1999 dated 5-3-1999, nor any interest, penalty, other charges etc. levied on these dues].
2. It was argued that the department has been part and parcel of the process of issue of the said sanctioned scheme of the BIFR and the order dated 5- 3-1999 referred to therein was passed by the learned Commissioner relating to the present order.
3. The learned DR has contended that on an earlier occasion when cross-examination was allowed by the previous Commissioner none of the witnesses turned up. He also emphasized the fact that the two of the three witnesses whose cross-examination was sought for are none but the employees of the appellant themselves, so that it cannot be stated that principles of natural justice had been violated. As regards the sanctioned scheme under the BIFR scheme, it was contended that the Tribunal was not bound by Clause (xv).
4. We have examined the case record and heard both sides. At the outset, it appears that the learned Commissioner for whom the matter was remanded by this Tribunal has denied cross-examination simply on the plea that there was no specific direction from this Tribunal. In our opinion, any adjudicating authority to whom the case is remanded for a fresh decision should be competent enough to know of his responsibilities and should follow the procedure required under the law for which no basic Do's and Dont's have to be laid down by the higher forum every time the case is remanded. The learned Commissioner should have dealt with the request of cross-examination by the appellant and have passed necessary orders based on reasons, even if he had found that there was no case for cross-examination. We have also come across a decision of the Apex Court in Metal Box India Limited v. CCE, Mumbai , in which the Hon'ble Supreme Court has held that payment of pre-deposit covered under Section 35F of the Central Excise Act, 1944 does not fall under any of the enumerated categories in Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. However, considering the whole circumstances under which the said sanctioned scheme has been worked out, obviously, in consultation with the Government of India and keeping in view of Clause (xv) of the scheme. We find that the appellants have made out a case for waiver of the requirement of pre-deposit during the pendency of the appeal. The stay applications are accordingly disposed of. The appeals shall come up for final hearing in their due course.