2015 (12) TMI 257 - HC - Central Excise

Restoration of appeal - Non compliance with pre deposit order - Exparte order - Held that - Commissioner (Appeals) should not have decided exparte stay application. Moreover, the order passed in the stay application has also not yet been served upon the petitioner nor it is annexed with the counter affidavit. As there is violation of principles of natural justice in deciding the stay application which is for waiver of the deposition of the amount, we hereby revive the appeal as well as the stay application preferred by the petitioner - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Challenge to ex parte order by Commissioner (Appeals) on stay application and subsequent dismissal of appeal due to non-compliance.

Analysis:
The writ petition challenges an ex parte order by the Commissioner (Appeals) regarding a stay application, which required the deposit of the whole amount within a month. The petitioner's appeal was dismissed for non-compliance. The petitioner seeks revival of the stay application and a direction for the Commissioner (Appeals) to hear the petitioner or its representative and decide on the stay application and appeal.

Upon hearing both parties and examining the counter affidavit and communications, it was found that the stay orders were passed without giving the petitioner an opportunity to be heard. The orders required payment within a month, and due to non-compliance, the appeal under Section 35 of the Central Excise Act was dismissed. The violation of principles of natural justice in deciding the stay application led to the revival of the appeal and stay application against the original order dated June 22, 2011.

The High Court quashed the Order in Appeal dated September 4, 2012, and the stay orders dated January 5, 2012, and December 5, 2011. The Commissioner (Appeals) was directed to decide the stay application afresh after providing an adequate opportunity for the petitioner or its representative to be heard. The petitioner was instructed to be present before the Commissioner (Appeals) on a specified date for further proceedings.

In conclusion, the writ petition was allowed, and the court disposed of the matter by setting aside the previous orders and granting a fresh opportunity for the petitioner to present their case before the Commissioner (Appeals) for the stay application.