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TMI Blog2012 (9) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... ACME Global v. Commissioner of Central Excise, Lucknow [2011 (271) E.L.T. 80 (Tri.-Del.)]. 3. An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, in case, High Court is satisfied that the case involves a substantial question of law. 4. While assailing the impugned order, it has been submitted by learned counsel for the appellant that no opportunity of hearing was provided to the appellant with regard to undue hardship on the application moved under Section 35F of the Act. Accordingly the decision with regard to rejection of application by the appellate authority as adjudicating authority was violation of principles of natural justice. 5. It shall be appropriate to discuss the brief facts of the case on record as noted by the Customs, Excise Service Tax Appellate Tribunal, New Delhi in short Tribunal . 6. M/s. ACME Global, 40B, Sarojini Nagar, Lucknow (hereinafter referred to as the appellant ) are engaged in manufacturing of Ada Brand Pan Masala contained tobacco commonly known as gutka classifiable under Chapter sub-heading 2403 99 90 of the first schedule to the Central Excise Tariff Act, 1985 and as they were found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense such deposit subject to such conditions as he or it may deem fit and impose so as to safeguard the interests of revenue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of filing. 9. A plain reading of Section 35F shows that by preferring the appeal against the order passed by original authority, it shall be incumbent on the assessee to deposit the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded. This is all the more important in the context of taxation and revenue matters. When an authority has determined a tax liability or has imposed a penalty, then the requirement that before the appeal is heard such tax or penalty should he deposited cannot be held to be unreasonable as already pointed out above. In the case of Shyam Kishore v. Municipal Corpn. of Delhi it has been held by this Court that such requirement cannot be held to be harsh or violation of Article 14 of the Constitution so as to declare the requirement of pre-deposit itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellate authority to take a decision with regard to compliance of principles of natural justice with due opportunity of hearing to the appellant. Moreover, in Jesus case (supra), Hon ble Supreme Court itself had interpreted Section 35F of the Act by recording different finding, hence it is not open for the High court to take a different view. The judgment and order passed by Hon ble Supreme Court is binding under Article 141 of the Constitution of India. The judgment of Supreme Court in the case of A.K. Kraipak v. Union of India and Menaka Gandhi v. Union of India (supra) though deals with the principles of natural justice, the hands of the Court are tight when Hon ble Supreme Court itself interprets statutory provision and gives different meaning. 12. Learned counsel for the appellant has further relied upon the case reported in (2006) 13 SCC 347 = 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.), Benara Valves Ltd. and Others v. Commissioner of Central Excise and Another. In case of Benara, their Lordship of Supreme Court has held that while deciding the issue with regard to undue hardship appellate authority has to apply its mind and pass reasoned order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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