9911796707
TMI Blog2006 (1) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise which was challenged by the petitioner by way of an appeal before Commissioner (Appeals), Ahmedabad. The appeal was accompanied by an application seeking stay of demand. On 3-6-1997 the Commissioner (Appeals) issued communication which reads as under : "Sirs, In connection with your petition for stay/waiver of pre-deposit of duties dated 22-7-1996 sent along with your appeal memorandum, you are informed that the matter has been prima facie considered, but your request is not found acceptable under the existing facts represented in your appeal petition/stay petition. In case you have additional evidence to support your claim for financial hardship, you are hereby given an opportunity to present the same before this authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. It is an admitted fact that the petitioner did not respond to the aforesaid communication dated 3-6-1997. Therefore, vide order dated 15-12-1997 the appeal came to be dismissed. It is also necessary to note that common appellate order was made in case of 17 different assessees including the petitioner whose name appears at Sr. No. 11 of the consolidated order.- 6. On behalf of respondent No. 4 an affidavit-in-reply is tendered and in paragraph No. 8 of the affidavit-in-reply it is stated thus : "8. That being aggrieved and dissatisfied by the order passed by the Asst. Commissioner dated 25-4-1996, petitioner preferred an appeal before the Commissioner, Appeals along with stay application. The Commissioner Appeals, vide notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lkan, Mr. Parikh contended that there were, issues regarding limitation, jurisdiction etc. and need to be dealt with and hence, if the appeal is restored to the file of the Commissioner (Appeals) it would not result in futile exercise. 9. As can be seen from paragraph No. 8 of the affidavit-in-reply and the submissions made by learned Counsel for the respondent it is apparent that the Commissioner (Appeals) virtually decided the stay application without granting any hearing to the petitioner. Communication dated 3-6-1997 is an advance order, if one can term it to be so, only calling upon the petitioner to furnish additional evidence in support of the plea of financial hardship. The position in law is well settled that an authority who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and produce the proof of compliance by 23-9-1997. This fact appears in paragraph No. 2 of order dated 15-12-1997 made by Commissioner (Appeals) while dismissing the appeal of the petitioner. 12. The petitioner has challenged the Order-in-Original as well as the appellate order, but has not challenged the order dated 16-9-1997 made on stay application. However, in so far as Order-in-Original is concerned, the petitioner having already availed of the remedy of appeal relief qua the same cannot be granted in these proceedings. In so far as the order dismissing the appeal and order directing pre-deposit are concerned, it is apparent that both these orders are based on the so called communication dated 3-6-1997. As the said communication itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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