2014 (9) TMI 473 - HC - Central Excise

Waiver of pre deposit - Clandestine manufacture and clearance of goods - Held that - Impugned order came to be passed without hearing the petitioner. Under the circumstances, particularly in view of the petitioner s plea that the deposit of the amounts as directed in the impugned order would cause undue hardship, we are of the opinion that the matter requires reconsideration after giving an opportunity of being heard to the petitioner - Decided in favour of assessee.

Summary

Issues: Challenge to the order passed in Stay Application, Violation of principles of natural justice, Lack of notice to the petitioner, Confusion regarding appeal numbers, Undue hardship due to deposit requirement.

Analysis:
The writ petition was filed seeking Certiorari to challenge the order passed by the Respondent No. 1 in Stay Application No. 226/2012 in Central Excise Appeal No. 387 of 2012. The petitioner, a company represented by its Managing Director, appealed against an order demanding a total amount under the Central Excise Act, 1944, alleging clandestine activities. A penalty was also imposed on the Managing Director individually, leading to a separate appeal for the penalty. Miscellaneous applications were filed for waiver of pre-deposit and stay of collection. The impugned order granted waiver and stay subject to a deposit condition, which was challenged as arbitrary, illegal, and a violation of natural justice due to lack of notice to the petitioner.

The court noted that the appellant was not heard before the impugned order was passed, and the petitioner claimed no notice was served, depriving them of an opportunity to be heard. Evidence was presented to support the claim of lack of notice, revealing confusion in appeal numbers between the company and the Managing Director. The court found no reason to doubt the petitioner's lack of knowledge about the hearing. Despite this, the order was passed without hearing the petitioner, leading to a requirement for reconsideration, especially considering the undue hardship the deposit would cause. Since appeals were filed by both the company and the Managing Director, with confusion in appeal numbers, it was deemed necessary to hear the applications together to avoid further confusion.

Consequently, the impugned order was set aside, and the writ petition was disposed of with a direction to the 1st respondent to consider the applications from both appeals together and pass appropriate orders after giving an opportunity to be heard. Any pending miscellaneous petitions in the writ petition were to be closed, with no costs imposed.