NELVIN ENTERPRISES Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) For reasons recorded below we waive the requirement of pre -deposit of duty, stay recovery thereof and proceed to dispose off the appeal itself with consent of both sides as the issue lies within a very narrow compass.

(2.) Aggrieved by the confirmation of duty demand by the adjudicating authority the appellants preferred an appeal along with an application for waiver under Section 35F of the Central Excise Act before the Commissioner (Appeals) who directed pre -deposit. The appellant applied for modification of the stay order after the period fixed for pre -deposit had expired. The modification application was disposed off and since the appellant did not comply with the pre -deposit requirement fixed, even after receipt of the order of rejection of modification application, the appeal came to be dismissed without notice to the appellant.

(3.) On hearing both sides and considering the decision of the Tribunal in the case of Steel Authority of India Ltd. v. CCE 2000 (115) ELT 700, we find that the Tribunal has held that the modification application dismissed without affording any hearing to the applicants and further dismissal of the appeal for non -compliance under Section 35F also without prior notice to the appellant, is in violation of the principles of natural justice, we set aside the order and remand the case to the Commissioner (Appeals) for decision afresh, first on the application for modification and thereafter for decision on the appeal itself.