ALASKA INDUSTRIES Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule. Learned standing counsel Shri Malkan, appearing on advance copy of these petitions being served upon him, waives service of rule for the respondents in all these petitions.

(2.) . In all these petitions, the petitioners are common. They have challenged in these petitions common impugned order dated 20.09.2004 passed by the Commissioner (Appeals), whereby he had rejected all the misc. applications filed by M/s Alaska Industries and its partners and others of modifying common stay orders passed on 03.02.2004 and directed the petitioners to deposit Rs.5,25,399/- as ordered, as pre-deposit vide earlier stay order dated 03.02.2004 within two weeks from the date of receipt of the order and report compliance within four weeks thereafter, failing which it was ordered that the main appeal be dismissed for noncompliance of Section 35(F) of the Central Excise Act, 1944.

(3.) Relying on the judgment of the Division Bench of Rajasthan High Court in the case of P.G.O. Processors Pvt. Ltd. V/s Commissioner, Central Excise, reported in 2000(122) E.L.T. 26 (Raj.), learned counsel Shri Nanavati, appearing in all these petitions for the petitioners, submitted that without supplying copies of necessary documents, the Commissioner (Appeals) passed stay order dated 03.02.2004 and directed the petitioners to give pre-deposit of Rs.5,25,399/- against the duty demanded under Section 35(F) of the Central Excise Act, 1944 within two weeks of the date of the communication of the order and on depositing the same, the recovery of all dues was stayed. Though, this fact was specifically pointed out to the Commissioner (Appeals) in their modification applications, the same was not considered by the Commissioner (Appeals) and without considering the same, the Commissioner (Appeals) by his impugned common order dated 20.09.2004, dismissed all the four modification applications. Therefore, the impugned order dated 20.09.2004 be quashed and set aside. With utmost respect to learned counsel Shri Nanavati, we fail to appreciate that how the aforesaid judgment of the Rajasthan High Court in P.G.O. Processors (supra), has application on the facts of this case. The question before the Rajasthan High Court was altogether different than the question arising in these petitions. In the present cases, the common pre-deposit order was passed by the Commissioner (Appeals) under Section 35(F) of the Central Excise Act, 1944 on 03.02.2004 and the conditional stay was granted. Therefore, modification applications were submitted by the petitioners in all the four matters before the Commissioner (Appeals) which were rejected by the Commissioner (Appeals) by his impugned common order dated 20.09.2004 which is challenged in all these petitions. That was not the case before the Rajasthan High Court in P.G.O.Processors (supra). Therefore, in our considered opinion, the said judgment of the Division Bench of Rajasthan High Court will have no application to the facts of this case.