2007 (4) TMI 383 - HC - Central Excise

Waiver of pre-deposit - Appellant contended that the communication is not an order and request for supply of a copy of the order, which was not responded - There is no doubt that the order has been passed on the file and the impugned letter is merely a communication of the same - This is not the proper course to follow - The appellate authority is a quasi-judicial authority and it should pass a speaking order separately, which itself should be communicated to the parties - This, unfortunately, has not been done in this case - The impugned communication as well as and the order on which this communication is based, ought to be set aside -The same are set aside - The matter is remanded to the Appellate Authority to consider the application for waiver of pre-deposit

Summary

Issues:
Impugning letter regarding waiver of pre-deposit of penalty amount, scope of remand order, consideration of waiver request, communication as an order, misappreciation of facts by adjudicating authority, proper course of communication by appellate authority.

Analysis:
The writ petition challenged a letter received by the petitioner, informing about the Appellate Committee's decision on waiver of pre-deposit of a penalty amount. The matter involved a remand order from the Appellate Authority, directing the adjudicating authority to address specific points related to the case. The adjudicating authority's subsequent order was appealed, seeking a waiver of pre-deposit, leading to the impugned communication. The petitioner argued that the communication was not an order and the request for waiver should have been considered within the correct scope of the remand. It was contended that the adjudicating authority exceeded the remand's scope and made conclusions not required, based on a misappreciation of facts, particularly regarding export obligations and currency received.

The Additional Solicitor General acknowledged that the impugned communication was not an order itself but a communication of the order on file. However, it was highlighted that the appellate authority should have passed a separate speaking order, which was not done in this case. The issues raised by the petitioner were deemed inadequately addressed by the Appellate Authority in the waiver application. Consequently, the Court set aside the impugned communication and the underlying order, remanding the matter back to the Appellate Authority for a fresh consideration of the waiver application in light of the submissions made by both parties. The Court directed the Appellate Authority to dispose of the waiver application within three months, thereby concluding the writ petition.