2000 (7) TMI 873 - AT - Central Excise

Summary

Issues involved:
1. Disallowance of Modvat credit and imposition of penalty by jurisdictional Assistant Commissioner.
2. Appeal to Commissioner (Appeals) for waiver of pre-deposit and stay of recovery.
3. Disposal of the application by the lower appellate authority.
4. Representation submitted by the appellants for reconsideration of the order.
5. Rejection of the appeal on the ground of non-compliance with pre-deposit requirement.

Analysis:
1. The jurisdictional Assistant Commissioner disallowed Modvat credit and imposed a penalty on the appellants. The appellants appealed to the Commissioner (Appeals) seeking waiver of pre-deposit and stay of recovery. The lower appellate authority disposed of the application after a prima facie finding in favor of the appellants regarding a portion of the Modvat credit. However, the authority directed the appellants to make a pre-deposit of a significant amount within a specified timeframe, failing which the appeal would be dismissed.

2. The appellants submitted a representation for reconsideration of the order, citing financial hardships. The lower appellate authority proceeded to reject the appeal solely based on non-compliance with the pre-deposit requirement under Section 35F of the Central Excise Act. The appellants, through their advocate, requested a remand of the matter by setting aside the impugned order.

3. The judge carefully considered the submissions and found that the lower appellate authority did not adequately consider the financial hardships faced by the appellants while issuing the direction for pre-deposit. The judge noted a lack of reasonable exercise of discretion by the authority and emphasized the importance of considering the subsequent representation made by the appellants. The judge concluded that the case warranted a remand to the lower appellate authority with appropriate directions.

4. Consequently, the judge set aside both the stay order and the impugned final order passed by the Commissioner (Appeals) and allowed the appeal by way of remand. The Commissioner (Appeals) was directed to pass fresh orders on the appellants' stay application after considering their submissions and providing another opportunity for a personal hearing. The appeal was to be disposed of on its merits after affording a similar opportunity to the party, subject to the results of the stay application.