9911796707
TMI Blog1999 (12) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant was not heard before dismissing the appeal as required under the decision 1999 (113) E.L.T. 89 in the case of Electronic Devices v. Commissioner of Central Excise. The ld. JDR submits that further hearing of the applicant is not required before dismissal of the appeal as per the Supreme Court judgment in 1996 (83) E.L.T. 486 in the case of Union of India v. Jesus Sales Corporation. 2. Perused the appeal memorandum, stay application and the impugned order. The relief sought for in the appeal is to set aside the impugned order and to remand the case back to the Commissioner or Assistant Commissioner for deciding the case on merits without insisting upon the pre-deposit of the amount or for to allow the appeal with consequenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 18-1-1999 itself by the department as per acknowledgement made therein. The impugned order does not refer to this application. No orders are passed on the said application as submitted by the applicant, which is not disputed by the JDR. As contended by the applicant the ruling in 1999 (113) E.L.T. 89 - Electronic Devices v. Commissioner of Central Excise clearly applies to the case, and according to which dismissal of the appeal for failure to make pre-deposit without giving an opportunity to the appellant contravenes principles of natural justice. The decision of the Supreme Court in 1996 (83) E.L.T. 486 in the case of Union of India v. Jesus Sales Corporation deals with the discretionary power vested with the authority in unfettered man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consider the application on merits and dispose of it or to allow the applicant represent before passing of the order. None of these two options were exercised in this case by the Commissioner (Appeals). This covers area mentioned in para 4 of the judgment of the Supreme Court. The unfettered discretion is not exercised in the instant case in a reasonable rationale manner free from vagaries and arbitrariness. Under these circumstances this judgment will not help the respondent 6. In view of the above position the matter requires to be remanded to the Commissioner (Appeals) to consider the above application. So, I pass the following order. ORDER For the reasons discussed above, the pre-deposit of the disputed amount is waived and reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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