SURAKSHA FLEXO PACKS Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) TODAY , petition filed by the appellant praying for dispensing with pre -deposit came up for orders. On the facts and circumstances of the case, we feel that the appeal itself can be disposed of. Accordingly, we heard learned Counsel appearing on behalf of the appellant and the learned Departmental Representative. We dispose of the appeal itself.

(2.) ADJUDICATING Authority, namely, Deputy Commissioner ordered the appellant to pay a sum of Rs. 26,031 under Rule 9(2) of the Central Excise Rules read with Section 11A of the Act, imposed a penalty equal to the duty amount under Section 11 AC of the Central Excise Act and penalty of Rs. 2,000 under Rule 9(2) read with Rules 52A, 173Q and 226 of the Central Excise Rules. A further penalty of Rs. 5,000 was also imposed on Shri Rakesh Gupta, Director of the Company invoking the powers under Rule 209A of the Central Excise Rules, 1944, by Order -in -Original No. 3/CE/JP -II/99 dated 18.02.99. Aggrieved by that order, the company went in appeal before the lower appellate authority. Along with appeal, it moved a petition for waiving the pre -deposit under Section 35F of the Act on the ground of financial difficulty as well. Appellate Commissioner rejected this petition and directed the appellant to deposit the entire amount within three weeks from the date of passing of that order, namely, 09.12.99. As the appellant did not/could not comply with the direction, he dismissed the appeal by Order - in -Appeal No. 103(KDT)CE/JPR -11/2000 dated 11.02.2000. Hence this appeal.

(3.) THIS Tribunal was coming across same type of orders of stay passed by the Commissioner (Appeals), Bhopal. The same wordings seen in those orders are repeated by the Commissioner (Appeals) Jaipur, who passed Interim Stay Order No. 137/CE/JPR dated 09.12.99. From this it appears that both the Commissioners were having stereotyped copies of stay orders wherein number of appeal alone has to be printed on the dotted line. It is rather unfortunate to have such an approach made by Commissioners while dealing with stay applications filed by the appellant challenging the orders passed by the adjudicating authority. Clear absence of application of mind is writ large in the order of stay passed in the instant case. Financial difficulty is a reasonable ground for getting the condition of pre -deposit waived. That aspect of the matter had not been considered by the aappellate authority while passing the order of stay. The entire duty demanded and the penalty imposed as per order of adjudication was directed to be deposited within three weeks from the date of the order. That having not been complied with the appeal was also rejected. Appellate authority did not apply his mind to the facts on merits of the case at any point of time. From the facts and circumstances of the case it appears that the appellant who preferred the appeal was a small scale entrepreneur. If his grievance is dealt with by the Commissioner (Appeals) in the manner in which it was done, it will go against the policy of the Government to help small scale entrepreneurs. Be that as it may, we are clear in our mind that the Commissioner did not apply his judicial mind to the circumstances which led to filing of the appeal.