The issue involved in the writ petition was whether before passing any order u/s. 85 of the Finance Act, 1994 read with section 35F of the Central Excise Act, 1944, opportunity of hearing is required to be given to the petitioner, seeking waiver of condition of the pre deposit.
The petitioner had challenged the order passed by the Commissioner (Appeals) Central Excise and Service Tax, Ranchi, whereby the ld. Commissioner (Appeals) without affording any opportunity of hearing to the writ petitioner had decided the petitioner’s prayer for waiver of deposit of the duty and interest demanded and penalty imposed and for stay of the operation of the impugned order passed by the Addl. Commissioner of Central Excise, Jamshedpur. The ld. Commissioner (Appeals) C.E. and S.T. Ranchi was of the view that in view of the judgment of the Supreme Court delivered in the case of Union of India vs. M/s. Jesus Sales Corporation Ltd. (1996) (83) ELT 486 (SC) opportunity of hearing was not required before deciding the prayer for waiver of pre deposit condition provided under the proviso to section 35 for the Central Excise Act, 1944 and for passing the interim order of stay.
The petitioner submitted that there was gross indiscipline and judicial impropriety on the part of the Commissioner (Appeals), who even after decision of the Court in M/s. Panch Sheel Udyog had passed the ex parte order in the present case.
The Honourable Court observed that if Commissioner(Appeals), Central Excise & Service Tax, Ranchi was of the view that he had correctly understood the judgment of M/s. Jesus Sales Corporation Ltd (supra) and decided the matter without affording opportunity of hearing to the writ petitioner then, it was the heavy duty upon him to update himself with the laws as the said authority himself took the task of deciding the matter without the assistance of the applicant before him. The law laid down by the Honourable Supreme Court and which had already been interpreted by the various high courts should not have been ignored. The Commissioner ought to have updated his knowledge by reading the judgments referred above wherein the case of M/s. Jesus Sales Corporation Ltd has been considered and it has been held that M/s. Jesus Sales Corporation Ltd. case has not barred hearing of applicant seeking relief of waiver of condition of pre deposit. If the Commissioner (Appeals) C.E and S.T. Ranchi had no knowledge of those judgments, then he is certainly guilty of not keeping himself updated in the case where, according to him, he has been given power to decide application having civil consequences, without following principles of natural justice and finding out one old judgment ,i.e, the judgment delivered in the case of M/s. Jesus Sales Corporation Ltd which he interpreted in the manner in which he wanted to interpret. The interpretation given by the Commissioner (Appeals) Central Excise and Service Tax, Ranchi was certainly erroneous, in view of the reasons given in the other judgments, wherein the reasons have been given in detail to show that the case of M/s. Jesus Sales Corporation Ltd never laid down that opportunity of hearing is not required before passing any order under sec. 35F of the Central Excise Act, 1944 and that position has been fully explained by various High Courts.
There was clear direction of the Court in the one case of M/s. Panch Sheel Udyog to the same authority, to grant opportunity of hearing to the writ petitioner in the similar and identical facts and circumstances, yet Commissioner (Appeals) Central Excise & Service Tax, Ranchi, without giving any reference to the decision of this Court in M/s. Panch Sheet Udyog passed the impugned order, which may amount to gross contempt of this court.
The Court observed that such attitude of the Commissioner (Appeals) certainly reflects his attitude towards litigant.
In totality, it was held that order under challenge was absolutely illegal and contrary to law. The Commissioner (Appeals) had committed gross error of law in denying the opportunity of hearing to the writ petitioner.
