TMI Blog1997 (9) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery of the amount held recoverable from the petitioner appear to have been started against it. Aggrieved the petitioner filed W.P. Nos. 12728-30/1997 in this Court, inter alia seeking a mandamus directing the Appellate Authority to hear and dispose of its interim application for waiver of pre-deposit. These writ petitions were together with a bunch of similar other cases disposed of by this Court by a common order dated 30th of June, 1997, with a general direction to the Appellate Authority to dispose of the interim applications filed in the Appeals preferred before it expeditiously and within a period of two months from the date the same are filed if it was for any reason not possible to dispose of the appeal itself. The Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the date of hearing fixed by the Appellate Authority till the 1st of August 1997 when it received from the Appellate Authority three different orders all dated 17th of July 1997, disposing of the applications filed by the petitioner and directing it to make pre-deposits in the manner and to the extent indicated in each one of those orders. Aggrieved, the petitioner has assailed the said orders in these writ petitions. 3.Mr. Rajesh Chander Kumar, learned Counsel for the petitioner raised a short point in support of these petitions. He urged that the impugned orders of the Appellate Authority were in violation of the principles of natural justice inasmuch as the authority had not afforded to the petitioner any opportunity of being heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He contended that proviso to Section 35F of the Central Excises and Salt Act was in pari materia with Section 4M of the Imports and Exports Act, 1947 and empowered the Appellate Authority to dispense with pre-deposit either unconditionally or subject to such condition as it may impose in cases where it was in its discretion necessary to do so to avoid undue hardship to the appellant. Inasmuch as the appellate Authority had not granted a personal hearing to the petitioner in support of its application seeking waiver of pre-deposit, contended Mr. Haranahalli, the Appellate Authority committed no illegality to warrant interference from this Court. 5.I have given my anxious considerations to the submissions made at the Bar. In Jesus Sales C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing in that regard. Direction No. 3 given in the order of this Court dated 30th of June 1997 passed in the earlier batch of cases is in this regard relevant. "The applications for waiver/stay filed by the petitioners in their respective appeals shall be disposed of by the appellate authority within a period of 4 months from the date of this order. The petitioners shall either themselves or through authorised agents appear before the appellate authority on 7th of July 1997 for fixation of dates of hearing on which the said applications shall be taken up for hearing preferably in batches of five or more applications a day. While fixing the dates of hearing, the appellate authority shall give preference to cases, in which the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed by the Supreme Court in Jesus Sales Corporation's case, does not debar the appellate authority from deciding in its discretion to grant an opportunity of being heard to the party applying for an order under Section 35F of the Act. This is apparent from the following passage from the said decision : "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 grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Notices. The order on the other hand proceeds on the basis that the notices should be deemed to have been received by the petitioner since they had been sent on a correct address. The Appellate Authority has in fact disbelieved the postal report made on the notices sent by it, and implied due service of the same, for which, I find no valid ground or justification. 9.In the totality of the above circumstances therefore, the impugned orders passed by the appellate Authority cannot be sustainable. These petitions accordingly succeed and are hereby allowed. The impugned orders dated 17th July, 1997, Annexures E, E1, E2, to the writ petitions are hereby quashed. The appellate authority shall pass fresh orders on the petitioner's appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
