C.H. HERBS Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) APPELLANT claims to be manufacturers of ayurvedic medicines. By adjudication Order No. 178/DC/IND -1/CEX/98 -99, dated 10 -3 -1999, the Deputy Commissioner of Central Excise imposed a duty of Rs. 2,13,888/ - under Section 11A of the Central Excise Act, 1944. Mandatory penalty of similar amount under Section 11 AC and penalty of Rs. 75,000/ - under Rule 173Q is also imposed. Interest under Section 11AB was also levied. Aggrieved by that order appellant preferred an appeal before the Commissioner (Appeals), Bhopal. Along with that appeal an application for stay of operation of the order impugned was also filed. That application was disposed of by Interim Stay Order No. 273 -CE/BPL/2000, dated 10 -3 -2000. Commissioner ordered the appellant to deposit the entire amount within three weeks from the date of that order failing which, it was ordered that the appeal shall also stand rejected without any further reference to them. This order is under challenge.

(2.) BEFORE going into the details, we express our anguish in the manner in which particular Commissioner (Appeals) disposes of stay applications and appeals filed before him. Atleast on six or seven earlier occasions we came across identically worded orders passed by him on stay petitions filed by the appellants before him. The stereo -typed order shows clear absence of application of mind to the facts of each case. Commissioner, we are pained to say, was not at all acting in a judicial manner.

(3.) IN the instant case, the Representative of the appellant has substantiated the case that the appellant was running at a loss. Financial constraint ought to have been taken into consideration by the lower appellate authority in directing them to deposit the amount as provided by Section 35F of the Act. Commissioner has failed to apply his mind to this aspect of the matter. Non -application of his mind to the circumstances is sufficient to set aside his order. Since the impugned order was passed without reference to the relevant circumstances in the case, we set aside the order and direct the Commissioner to take back the appeal to his file in its original number. He should dispose of the same on merits without insisting on pre -deposit as contemplated by Section 35F, after affording a reasonable opportunity of being heard to the appellant. Since this is an old matter, he should pass final order within three months from the date of receipt of a copy of this order, after affording personal hearing to the appellant.