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TMI Blog2011 (7) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... nd M/s. Sanghi Polymers Pvt. Limited filed W.P. No. 12218 of 2011 assailing the correctness of the order passed by the Commissioner of Customs, Central Excise and Services Tax (Appeals III)-first respondent herein, dated 23-3-2011, whereby the first respondent waived the condition for entertaining the appeals and restricted the pre-deposit amount of penalty to 10% and 50% respectively as per the first proviso to Section 35F of the Central Excise Act, 1944 (for short 'Act'). In both the cases, petitioners pleaded that due to the financial constraints of the company, the pre-deposit amount of penalty has to be dispensed with for entertaining the appeals. 3. Learned counsel for the petitioners contends that by relying upon the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment contended that at the time of waiving the pre-deposit amount, the merits of the appeal cannot be gone into by the appellate authority. It is contended that no hearing is necessary when the petition filed for waiving the pre-deposit amount has been decided by the Appellate Tribunal as held by the Supreme Court and also by this Court in Commissioner of Central Excise, Guntur v. Sri Chaitanya Educational Committee - 2011 (22) S.T.R. 135 (A.P). 5. It is the sole contention of the learned counsel for the petitioners that in view of the remand order passed by the Appellate Tribunal at Madurai Bench in A. Nos. 223 to 225 & 232 of 2009, dated 21-7-2010 in similar set of facts, the order passed by the primary authority i.e. Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue hardship which it is likely to cause to the appellant. Therefore, it is difficult to hold that if the appellate authority has rejected the prayer of the appellant to dispense with the deposit unconditionally or has dispensed with such deposit subject to some conditions without hearing the appellant, on perusal of the petition filed on behalf of the appellant for the said purpose, the order itself is vitiated and is liable to be quashed being violative of the principles of natural justice. When the appellate authority has been vested with the discretion to dispense with such deposit unconditionally or on conditions, then it has to apply its mind on that question like a quasi-judicial authority taking into consideration all the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration therein is whether or not an opportunity of hearing be afforded to an assessee before ordering special audit in terms of Section 142(2-A) of the Act. Considering the provisions, it was held that the exercise of the power under Section 142(2-A) of the Act leads to serious civil consequences and therefore, even in the absence of express provision for affording an opportunity of pre-decisional hearing to an assessee and in the absence of any express provision in Section 142(2-A) barring the giving of reasonable opportunity to an assessee, the requirement of observance of principles of natural justice is to be read into the said provision, but the same should be in prospective in nature but it should not be retrospective. Since the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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