Kailash Agrawal vs Commissioner of Central Excise and Customs

Navin Sinha, Acting C.J—The present appeal arises from order dated 21-4-2014 in Central Excise Appeal No. 56499 of 2013 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi. The Tribunal has dismissed the appeal on the ground of failure to comply the interim order by deposit of Rs. 1 lac granting partial waiver of pre-deposit by order dated 17-12-2013. We have heard learned Counsel for the parties. At this stage we are not concerned with the merits of the matter with regard to waiver of pre-deposit or the correctness of the contentions as urged on behalf of the appellant. Suffice it to observe that if in the stay application for waiver of pre-deposit the appellant raised issues with regard to the extent of pre-deposit granted in similar matters based on nature of demand and specifically pleaded undue hardship for reasons mentioned in the application, the Tribunal was required to consider the same while passing the order dated 17-12-2013 while directing deposit of Rs. 1 lac against a demand of Rs. 2 lacs. The Tribunal completely failed to deal with both the issues. If that were not enough, the appellant filed an application for modification of the order dated 17-12-2013, in which he specifically pleaded discrimination with regard to the extent of waiver of pre-deposit and reiterated undue hardship for reasons mentioned in the same. The impugned order again does not consider and deal with both issues and opines that it was not inclined to de novo consider the stay application.

In the facts of the case we are satisfied that the decision making process of the Tribunal with regard to waiver of pre-deposit suffers from procedural irregularity and is unsustainable in its present form. The orders dated 17-12-2013 and 21-4-2014 are set aside. Central Excise Appeal No. 56499 of 2013 is restored to file on merits. The Tribunal shall hear the appellant on its application for waiver of pre-deposit afresh, preferably within a maximum period of four weeks from the date of receipt and or production of a copy of this order before the Tribunal by either party.

This order has been passed in presence of the Counsel for the appellant. If disposal of the pre-deposit issue is delayed beyond time granted for reasons attributable to the appellant, for reasons recorded by the Tribunal, the order dated 21-4-2014 shall call for no interference and the writ petition shall stand dismissed. The appeal is allowed.