Full Judgment
2. Both the appeals arise out of a common order in appeal bearing No.PPM 1318-1319/AUR-224-225/87 dated 11/2/1988 passed by the Collector of Central Excise (Appeals), Bombay.
3. In the stay applications, among other things, the applicants have urged that before the Collector (Appeals), they have filed stay application dated 10.8.1987 and the Collector (Appeals) without going into the merits and/or considering the stay applica tion dismissed the appeals for non-deposit of the duty demanded. Having regard to the said averment, we questioned Shri Arya whether the Collector (Appeals) had considered the stay applications before him before passing the impugned order. Shri Arya submitted that the records do not indicate that the stay applications have been considered by the Collector (Appeals). He, however, urged that the department has a very good case on merits.
4. We have perused the impugned order. The material portion of the order reads: "I have carefully gone through the appeal petitions as well as orders in original appealed against. It is observed that the appellants were given a notice on 30-7-1987 for both the appeals for personal hearing with directions to produce the proof of payment of duty. Prior to this, personal hearing was fixed on 5-3-1987, but the appellant requested for adjournment vide their letter dated 2-3-1987. Their request was accepted and a fresh hearing was fixed as per notice dated 30-7-1987 as stated above....They also did not produce the proof of payment of duty. In the circumstances both the appeals are dismissed for non compliance of provisions of Section 35F of Central Excises and Salt Act. 1944." 5. Thus it is seen that the Collector (Appeals) dismissed the appeals not on merits but for non-deposit of the duty demanded. There is not even a whisper in the Col lector (Appeals') order as to whether the stay applications filed by the appellants were considered and any orders passed on them requiring the appellants to deposit the duty. It is also not clear from the Collector (Appeals') order whether any time had been given to the appellants to deposit the duty. The law requires the Collector (Appeals) to con sider the stay applications in the first instance and to pass orders thereof either dispens ing with the pre-deposit or requiring the party to make the deposit within the period stipulated by the Collector (Appeals). The Collector (Appeals) appears to have not fol lowed the procedure required to be followed under law. Mere non-deposit itself would not be sufficient to dismiss the appeals. The party is required to be given an opportunity to deposit the duty. A reasonable time should also be allowed to make the deposit. Despite such an order the party without sufficient cause fails to make the deposit then only the Collector (Appeals) gets jurisdiction to dismiss the appeals for non-deposit.
6. Since the procedure followed by the Collector (Appeals) is not in accord ance with law, we set aside the order passed by the Collector (Appeals) in the appeals, and remand the matter to the Collector (Appeals) for consideration afresh. The Collec tor (Appeals) shall list the stay applications filed by the appellants herein and consider the same and thereafter he shall consider the appeals filed by the appellants herein before him.
7. Since we have disposed of the appeals, the stay applications do not survive for consideration. They are disposed of accordingly.