2001 (8) TMI 142

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..... y demanded or penalty levied as a condition precedent for hearing the appeal. The Commissioner without hearing the parties dismissed the applications. The wordings used while dismissing the applications are :- ".....In the light of the above, I have considered the stay application, and am of the opinion that the appellants have failed to make out a prima facie case that deposit of duty demanded or penalty levied would cause undue hardship to the appellants in the event of their application for stay being rejected. The application for stay for the waiver of pre-deposit of the duty demanded and penalty imposed is accordingly rejected. However, I grant the applicant 3 weeks time from the date of passing of this order to comply with the pro .....

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..... such deposit taking into consideration the hardships of the appellants concerned. There are other provisions where the requirement of pre-deposit empowers the appellate authority to dispense with the amount of penalty unconditionally or subject to conditions. When such provision is made in the statute then it is necessary for the appellate authority to apply its mind on the question like a quasi judicial authority taking all the facts and circumstances of the case into consideration including undue hardship which has been pointed but on behalf of the appellant. In the peculiar facts and circumstances of the case the Apex Court took the view that if personal hearing was not given to the party it would not invalidate the order passed, whereu .....

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..... deposit of the duty demanded or the penalty levied is a condition precedent for hearing of appeal. However there is a proviso added to this Section which reads thus : "Provided that where in any particular case, the Commissioner (Appeals) of 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 with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue." The proviso gives discretion to the authority in a given case to condone the requirement of deposit of the duty demanded or the penalty levied as a pre condit .....

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