9911796707
TMI Blog2013 (12) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... Act'), before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore , along with an application for waiver of pre-deposit of duty and penalty. By order dated 31.01.2008 the CESTAT while granting the waiver of pre-deposit of duty remanded the matter to the Commissioner for de novo enquiry. Accordingly, a fresh order dated 30.12.2008 came to be passed by the Commissioner. Against the said order, the petitioner had again preferred an appeal before the CESTAT along with an application for waiver of the pre-deposit of duty. The petitioner also sought stay of operation of the order of the Commissioner dated 30.12.2008. The CESTAT by order dated 30.11.2011 directed the petitioner to pre-deposit 50% of the entire amount of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout considering the same, the final order dated 28.5.2012 came to be passed by the CESTAT dismissing the main appeal itself and the said order was communicated to the petitioner vide Assistant Registrar's letter dated 23.8.2012. It is further pleaded that the ex parte order dated 30.11.2011 was without assigning any reasons and even the final order dated 28.5.2012 came to be passed without considering the petitioner's request for modification of the condition for pre-deposit of 50% of duty. Thus it is contended that the impugned orders dated 30.11.2011 and 28.5.2012 passed by the CESTAT being arbitrary, illegal and in violation of principles of natural justice are liable to be set aside. The respondents in their counter-affidavit did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to dispense with pre-deposit, in our considered opinion, requires to be exercised judiciously in an objective manner after giving an opportunity of hearing to the appellant. Coming to the case on hand, the order dated 30.11.2011 itself shows that the writ petitioner was not heard before passing the said order. It may be true that the matter had already undergone several adjournments at the instance of the petitioner and even on 30.11.2011 there was no representation on behalf of the petitioner despite notice. Therefore, though the Tribunal cannot be found fault with in proceeding with the matter in the absence of the petitioner, we are of the view that in such circumstances the Tribunal is bound to pass an order on merits assignin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not reflect the application of mind to the facts and circumstances of the case particularly the financial hardship pleaded by the petitioner. Moreover, the said order also came to be passed without hearing the writ petitioner. It is also relevant to note that the specific plea of the petitioner in the writ petition that the order dated 30.11.2011 was communicated to it only in April, 2012 remained un-controverted. That being so, we find force in the submission of the learned counsel for the petitioner that the Tribunal erred in presuming that the petitioner failed to comply with the condition imposed in the order dated 30.11.2011 to pre-deposit 50% of the duty demanded within six weeks from the date of receipt of a certified copy of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver assigning reasons therefor.
To avoid any further delay and to ensure the appearance of the petitioner before the CESTAT on the date fixed, the petitioner is hereby directed to appear before the CESTAT on 12.08.2013 and shall undertake to appear on the date that may be fixed by the CESTAT for hearing. In the event of the petitioner's failure to appear on the date so fixed by CESTAT for hearing, no further opportunity of personal hearing need be given to the petitioner and the order dated 28.5.2012 shall stand revived.
The Writ Petition is accordingly disposed of with the above directions. No costs.
Consequently, Miscellaneous Petitions, if any, pending in this writ petition shall stand closed. X X X X Extracts X X X X X X X X Extracts X X X X
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