1999 (12) TMI 487 - AT - Central Excise

Summary

Issues:
1. Compliance with stay order under Section 35F of the Central Excise Act.
2. Dismissal of appeal without hearing the applicant.
3. Modvat credit issue regarding pre-printed serial numbers and sale in transit.
4. Discretionary power of authorities in handling stay applications.
5. Consideration of modification application by the Commissioner.
6. Exercise of unfettered discretion in a reasonable and rationale manner.
7. Necessity of personal hearing before disposal of appeal.

Comprehensive Analysis:

1. The first issue pertains to the compliance with the stay order under Section 35F of the Central Excise Act. The appellant challenged the dismissal of the appeal by the Commissioner of Central Excise (Appeals) for non-compliance with the stay order. The contention was that the appellant was not heard before the appeal was dismissed, citing the decision in the case of Electronic Devices v. Commissioner of Central Excise. The JDR argued that further hearing was not necessary, citing the Supreme Court judgment in the case of Union of India v. Jesus Sales Corporation.

2. The second issue involves the Modvat credit issue concerning pre-printed serial numbers and sale in transit. The appellant argued that the Modvat scheme does not require the sale to be non-transit for claiming credit. The Commissioner had ordered a 50% pre-deposit of the disputed amount, which the appellant sought to modify without success. The appellant's application for modification was not considered before the appeal was dismissed.

3. The third issue addresses the discretionary power of authorities in handling stay applications. The judgment emphasized that while personal hearing before the disposal of the appeal for non-deposit of the disputed amount may not be essential, discretion must be exercised reasonably and free from arbitrariness. The appellant's modification application was acknowledged but not considered, indicating a lack of reasonable exercise of discretion by the Commissioner.

4. The fourth issue concerns the consideration of the modification application by the Commissioner. The Commissioner failed to exercise the options provided in the application, leading to a failure in the reasonable and rationale exercise of discretion, as required by law.

5. The fifth issue highlights the necessity of personal hearing before the disposal of the appeal. The judgment clarified that while personal hearing may not always be required, the exercise of unfettered discretion must be rational and free from arbitrariness. In this case, the failure to consider the appellant's modification application indicated a lack of reasonable exercise of discretion.

6. Finally, the judgment concluded that the matter needed to be remanded to the Commissioner (Appeals) for proper consideration of the appellant's application. The pre-deposit of the disputed amount was waived, and recovery stayed, allowing the appeal by way of remand for further consideration in accordance with the law.

This detailed analysis covers the various legal issues raised in the judgment, emphasizing the importance of procedural fairness, reasonable exercise of discretion, and compliance with legal requirements in handling appeals and stay applications in Central Excise matters.