MAGNUM STEELS LTD Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) AFTER carefully examining the records of the case and hearing ld. Advocate Shri J.S. Agarwal for the applicants and ld. DR Shri MM. Dubey for the respondents, I am convinced of the existence of a strong prima facie in favour of the applicants and therefore allow this application unconditionally. Having regard to the particular facts and circumstances of this case, I am of the view that the appeal itself can be disposed of at this stage. Accordingly I am taking up the appeal for disposal.

(2.) THE jurisdictional Assistant Commissioner, in adjudication of proceedings taken in pursuance of show cause notice dated 11 -9 -1997 against the appellants and another person, passed order dated 16 -3 -1999 confiscating certain quantity of finished goods of the appellants with option to redeem the same on payment of a fine of Rs. 50,000/ -. There was no demand of any duty or imposition of any penalty against the appellants under the order of adjudication. The order of the Assistant Commissioner was, however, taken in appeal by the party before the Commissioner of Central Excise (Appeals) and the latter passed an order dated 23/24 -9 -1999 rejecting the appeal on the sole ground of non -compliance with the requirement of pre -deposit under Section 35F of the Central Excise Act, without going into the merits of the case and without even affording any opportunity of hearing to the appellants. This order of the Commissioner (Appeals) is under challenge in the appeal before the Tribunal at present.

(3.) THE course of events culminating in the impugned order, as reiterated by the ld. Counsel for the appellants, is as follows : Alongwith their appeal to the Commissioner (Appeals), the appellants had also filed an application for waiver of pre -deposit and for stay under Section 35F of the Act before him and the latter had passed order dated 19 -8 -1999 directing the party to deposit "adjudged dues" within three weeks from the date of receipt of the order. This order was passed without affording any opportunity of hearing to the appellants. This order was received by the appellants on 24 -8 -1999, whereupon they submitted a modification application to the Commissioner (Appeals). This application was sent on 6 -9 -1999. In this application, the appellants had, inter alia, prayed for modification of the order dated 19 -8 -1999 after a personal hearing on their stay/modification applications. The Commissioner (Appeals) however did not consider this plea of the party and, without affording any opportunity of hearing to them, passed the impugned order rejecting their appeal on the sole ground of non -compliance with the order dated 19 -8 -1999.