2006 (1) TMI 140 - HC - Central Excise

Summary

Issues:
- Failure to respond to communication for additional evidence in support of stay application
- Lack of proper opportunity of hearing before deciding on the stay application
- Orders based on flawed communication dated 3-6-1997

Analysis:
1. The petitioner failed to respond to a communication dated 3-6-1997, which called for additional evidence to support the stay application. Consequently, the appeal was dismissed on 15-12-1997, affecting multiple assessees including the petitioner.

2. The respondent authority argued that the communication did not constitute a proper notice of hearing, as the Commissioner (Appeals) had seemingly made a decision without granting a fair opportunity of hearing to the petitioner. However, due to the matter being dated back to 1998 and the merits being decided against the petitioner by the Apex Court, it was deemed unnecessary to return the case to the Commissioner (Appeals).

3. The petitioner contended that there were issues regarding limitation and jurisdiction that needed to be addressed, suggesting that restoring the appeal to the Commissioner (Appeals) would not be a futile exercise. The affidavit-in-reply and submissions indicated that the Commissioner (Appeals) had essentially decided on the stay application without providing a proper hearing to the petitioner.

4. The Court noted that the Commissioner (Appeals) failed to follow the required procedure of considering the prima facie case in the appeal before addressing financial hardship. The communication lacked clarity on the hearing date for presenting additional evidence, rendering it vague and legally insufficient.

5. The orders dated 16-9-1997 and 15-12-1997, which were based on the flawed communication dated 3-6-1997, were deemed invalid. The Court quashed these orders and directed the Commissioner (Appeals) to provide a reasonable opportunity of hearing to the petitioner on the stay application in accordance with the law.

6. Consequently, the communication dated 3-6-1997, along with the subsequent orders, was set aside, and the petitioner was instructed to appear before the Commissioner (Appeals) for a proper hearing on the stay application. The judgment allowed the petition, with no costs imposed on either party.