1992 (10) TMI 152 - AT - Central Excise

Summary

Issues:
- Dismissal of appeal for non-compliance with Section 35F provisions
- Lack of show cause notice before dismissal of appeal
- Refusal to entertain review application
- Alleged violation of principles of natural justice
- Reconsideration of stay order
- Authority's power to recall orders
- Pre-deposit waiver based on financial hardship

Analysis:

The judgment concerns an appeal against the order-in-appeal passed by the Collector (Appeals) Ghaziabad, where the appellants' appeal was dismissed for non-compliance with the provisions of Section 35F of the Central Excises and Salt Act, 1944. The Collector had required a deposit of Rs. 2 lakhs in cash and a bank guarantee as per a previous stay order. The appellants contested the dismissal, arguing that they were not issued a show cause notice before the dismissal under Section 35F and that their review application was not entertained. They also alleged a violation of natural justice in the proceedings and the order-in-original. The appellants further claimed that the reclassification order was unlawful, seeking a waiver of the pre-deposit. The Tribunal considered these grievances and remitted the matter to the Collector (Appeals) for a fresh decision in line with principles of natural justice.

The appellants contended that the Collector (Appeals) erred in dismissing the appeal without a show cause notice and refusing to entertain the application for modification of the stay order. They argued that the approval of the classification list without a show cause notice was invalid, citing legal precedents to support their position. The Tribunal, after hearing both parties, found that the appeal could be resolved swiftly and proceeded to allow the appeal, directing a fresh consideration by the Collector (Appeals) in adherence to natural justice principles. The Tribunal emphasized the ancillary power of authorities to recall orders and cited various court decisions supporting the appellants' position regarding pre-deposit waivers based on financial hardship.

The Tribunal highlighted that the Collector (Appeals) should have entertained the appellants' application for reconsideration of the stay order, as every authority has the power to recall orders if satisfied, as established in legal precedents. The Tribunal referenced several court judgments that supported the appellants' argument for a waiver of pre-deposit due to financial hardship. It emphasized that the failure to consider the appellants' prayer and the lack of a show cause notice before dismissal had resulted in a miscarriage of justice, warranting a remand of the matter to the Collector (Appeals) for a fresh decision. The Tribunal directed the appellants to present their modification application for reconsideration within a reasonable time, ensuring a personal hearing and lawful disposal by the Collector (Appeals). Ultimately, the appeal was allowed by remand for further proceedings.