Customs, Excise and Gold Tribunal - Mumbai
Somesh Paper Tubes Pvt. Ltd., Shri S.K. ... vs Commissioner Of Customs And Central ... on 14 February, 2005
ORDER
Jyoti Balasundaram, Vice President
1. After hearing both sides for some time on the applications for waiver of pre-deposit of duty of Rs. 12,15,884/- and penalty of equal amount confirmed against the first applicant company and penalties of Rs. 1 lakh each on the two directors of the company, we found that it was possible to hear and decide the appeal themselves at this stage and hence we proceed to do so, after waiving pre-deposit.
2. Duty demand was confirmed and penalties imposed on the ground that the company indulged in clandestine removal of Paper Tubes during the period April 1994 to March 1998. Appeals were filed along with applications for waiver of pre-deposit before the Commissioner (Appeals) and several opportunities of hearing on the stay applications were granted by the lower appellate authorities. However for failure of the applicants to appear before him, he took up the appeals and the stay applications for hearing and dismissed the appeals, as being devoid of merit. No order in terms of Section 35F was passed prior to the dismissal of the appeals.
3. While, we agree with the Ld. DR that it was not necessary for the Commissioner (Appeals) to keep the stay applications pending ad infinitum, the proper course of action for him was to have decided the stay applications and if he had directed the applicants to pre-deposit, and the applicant failed to comply with such direction, then it was certainly open to him to dismiss the appeals for non-compliance under Section 35F. However as we have already noted that in these cases there is no order in terms of Section 35F in respect of any applicant. We therefore set aside the impugned order and remand the case to the lower appellate authority for fresh decision, first on their applications under Section 35F of the Central Excise Act and thereafter on the appeals themselves. He shall extend a reasonable opportunity to them of being heard and the applicants shall appear before him on the date fixed for hearing.
5. The appeals are thus allowed by way of remand.
(Operative part pronounced in Court)