Full Judgment
Gokulakrishnan, C.J.
1. Mr. Dave, learned Counsel appearing for the petitioner, wants permission of this Court to delete respondent No. 2 from the array of parties. Permission granted. Respondent No. 2 is deleted from the array of parties.
2. Rule. Mr. B. B. Naik, learned Counsel, appears for respondents Nos. 1 and 3 and waives service of rule.
3. Learned Counsels appearing for the respective parties herein have no objection for taking up this matter today for final hearing.
4. The main contention of the petitioner is that the Collector of Central Excise (Appeals) has not given opportunity to the petitioner to appear and represent its case for having the deposit dispensed with. It is further contended that cyclostyled orders are being passed, both at the interlocutory stage and also at the final stage, without applying mind regarding the genuineness of the Contentions raised by the party concerned for the purpose of dispensing with the deposit. Section 35F of the Central Excises and Salt Act, 1944, reads as follows :
'35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.'
It is seen from the order passed by the Collector of Central Excise (Appeals), which is at Annexure 'C' to the Special Civil Application, that the Collector (Appeals) has only considered the submission for stay in the application filed by the petitioner herein. In the said order, the Collector has stated that he is not satisfied that pre-deposit required under Section 35F of the Central Excises & Salt Act, 1944 would cause such undue hardship as to warrant waiver of the same. After such observations, the Collector (Appeals) has directed the petitioner to deposit the said amount immediately and produce evidence of such deposit within two weeks if the order. There is also a further condition to the effect that if such deposit is not made, the appeal is liable to be dismissed. We find from Annexure 'D' collectively to the Special Civil Application that the appeal was dismissed for non-compliance with the direction given by the Collector (Appeals) at Annexure 'C'. Since in this case there is a specific averment to the effect that the petitioner was not heard and since we find from the order passed by the Collector (Appeals), which is Annexure 'C' to the Special Civil Application, that no such hearing was given, the orders of the Collector (Appeals), both at Annexures 'C' and 'D', have to be quashed. Mr. B. B. Naik, learned Counsel appearing for respondents Nos. 1 and 3, was confronted with the Bench decision of our High Court made in Special Civil Application No. 693 of 1990, dated 22-2-1990, which came to be passed under similar circumstances, wherein it is laid down that it is now well settled that before dismissing even an application for stay, the Collector of Central Excise (Appeals) is required to hear the applicant. Mr. B. B. Naik had nothing more to add against the observations made in the said judgment. Since there is a specific averment in this case that the petitioner was not heard, the orders passed by the Collector (Appeals), both at Annexures 'C' and 'D', are set aside.
5. In the result, this petition is allowed. The Collector (Appeals) is directed to re-hear the stay application and dispose of the same after giving an opportunity of hearing to the petitioner. Respondents Nos. 1 and 3 are directed not to implement the order passed by respondent No. 3, which is at Annexure 'A' to the Special Civil Application, till the application for stay is disposed of. Rule is made absolute accordingly with no order as to costs.