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2013 (9) TMI 169 - AT - Central ExciseModification of stay order - Non-Compliance with the Stay Order - whether Commissioner (Appeals) had powers to modify the stay order passed by him - Non consideration of the said modification application results in failure of justice - Held that:- Keeping in the view the applicant had already deposited an amount of Rs. 15 lakhs - the condition of pre-deposit of balance amount of duty and penalties imposed was dispensed upon both the applicants – order set aside and matter remanded back to Commissioner (Appeals) for reconsideration of the modification application before him. Prem Nath Monga Foods & Beverages Pvt. Ltd. v. CCE [1992 (10) TMI 152 - CEGAT, NEW DELHI ] - The modification application was filed by the applicant and Commissioner (Appeals) was under a legal obligation to dispose of the said application - To reject the application and to dismiss the appeals simultaneously vide the same order does not meet the requirement of fair proceedings - Inasmuch as the applicant would come to know about the dismissal of the modification application vide the same impugned order along with the dismissal of its appeal - Even if the appellate authority deemed it fit to reject the modification application, interest of justice required him to extend the period to deposit the directed amount and to let the applicant also know about the same - In the absence of intimation about the decision on the modification of the application, the appellant cannot be expected to know about the same - As such, dismissal of the appeal for non-compliance along with rejection of the modification application violates the basic principle of natural justice. Dissenting Opinion – Member (Technical) was not in consonance of the Judgement of the Member (Judicial) therefore he delivered a Separate Judgement - Law being succinctly clear on the bar of exercise of power of review by an authority not expressly vested with such power by law and no Court can legislate on such power - In view of the majority opinion after waiving the requirement of pre-deposit for hearing the appeal filed with the Tribunal - the order-in-appeal was set aside with liberty to the appellant to comply with Stay Order issued by the Commissioner (Appeals) directing pre-deposit of Rs. 20 lakhs ordered by him within 30 days of receipt of this order for hearing of the appeal on merits by the Commissioner (Appeals) - If such pre-deposit is not made, the appeals before the Commissioner (Appeals) will stand dismissed and consequently the order-in-original will get restored.
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