2009 (11) TMI 608 - HC - Service Tax

Application for stay - Waiver of pre-deposit - No speaking order - As the petitioner did not communicate compliance with the conditions of the stay order but filed a petition requesting for reconsideration and modification of the aforesaid stay order, the Commissioner dismissed the main appeal on the ground of non-compliance with the requirement of Section 35F of the Central Excise Act 1944 - Principle of natural justice requires that there should be proper application of mind in taking a decision which cannot be possible without giving reason - The writ petition is accordingly disposed of

Summary

Issues:
Appeal against orders passed by Tribunal and Commissioner (Appeals) under Section 35G(2) of the Central Excise Act, 1944. Non-compliance with deposit order for waiver application. Rejection of waiver application without reason. Application of principle of natural justice in decision-making.

Analysis:
The appellant filed an appeal under Section 35G(2) of the Central Excise Act, 1944, seeking to quash orders passed by the Tribunal and Commissioner (Appeals). The appeal was against the Order in Original dated 20-11-2007. The Commissioner (Appeals) directed the appellant to deposit Rs. 4,00,000 towards duty by a specified date, failing which the main appeal would be liable for dismissal. The appellant failed to comply with the deposit condition, leading to the dismissal of the main appeal by the Commissioner (Appeals).

The appellant then appealed to the Customs, Excise & Service Tax Appellate Tribunal, Kolkata, which directed the appellant to deposit Rs. 4,00,000 within six weeks. The Tribunal remanded the appeals to the Commissioner (Appeals) for a decision on merit after the deposit. The Tribunal rejected the appellant's review petition. The Commissioner (Appeals) observed non-compliance with the deposit order and disposed of the appeals without further action.

The High Court noted that the appeal was disposed of solely due to non-compliance with the deposit order, without a decision on the question of waiver. The Court emphasized the importance of providing reasons for decisions to ensure the proper application of mind, in line with the principle of natural justice. Consequently, the Court held that the rejection of the waiver application without reasons showed a lack of application of mind.

Therefore, the High Court set aside the impugned order and remanded the matter to the Commissioner (Appeals) for reconsideration of the waiver application. The Court directed the Commissioner (Appeals) to restore the appeal and waiver application to their original status, reconsider the waiver application after hearing both parties, and issue a reasoned order considering relevant case laws.

In conclusion, the High Court disposed of the writ petition, granting an urgent certified copy upon proper application.