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CX - Stay - Pre-deposit - Commissioner (Appeals) to show that he has at least prima facie considered submissions of parties: Bombay HC

By TIOL News Service

MUMBAI, JAN 03, 2013: THE Commissioner (Appeals) Central Excise, Pune-I by an order dated 18.10.2012 after recording the petitioner's submissions merely stated that the petitioner have not made out any prima facie case for complete waiver of pre-deposit of duty, interest and penalty. In the circumstance, the Commissioner (Appeals) directed the petitioner to pre-deposit an amount of Rs.35 lacs under Section 35F of the Act out of a total demand of Rs.69.88 lacs ( Rs.34.94 lacs being duty and Rs.34.94 lacs being penalty) for the purposes of hearing the petitioner on merits.

The assesse is before the High Court in writ petition.

The Counsel for the petitioner, in support of petition submitted that the impugned order dated 18.10.2012 of the Commissioner (Appeals) Central Excise, Pune-I needs to be set aside as it is in the breach of natural justice. This is for the reason that the submission made by the petitioners were not considered and no prima facie view with regard to the petitioner's contention is recorded in the order before directing the Petitioner to pre-deposit an amount of Rs 35 lacs.

On the other hand, the Counsel for the Revenue reiterates the order dated 18.10.2012 and submits that no interference is called for, as the petitioner had not pleaded any financial hardship.

The High Court found merit in the submission of the petitioner that the order dated 18.10.2012 directing the petitioner to deposit of Rs.35 lacs is non speaking order and observed,

"The impugned order does not consider and/or examine submission made by the petitioner in support of its prima facie case to take a prima facie view. We appreciate that at the time of disposing of the stay application, the Commissioner (Appeals) is not required to consider all the submissions made by the parties in depth. However, as he would be exercising a quasi-judicial function while directing the petitioner to deposit or not deposit any amount for the purposes of entertaining the petitioner's appeal on merit, the same is required to be exercised by showing that he has at least prima facie considered the submissions of the parties before him. Merely because the petitioner has not pleaded any financial hardship, it would not follow that the amount of duty and/or penalty adjudicated by the lower authority has to be pre-deposited for the purposes of hearing of the appeal on merits. A strong prima facie case may at times constitute sufficient reason for dispensing with pre-deposit of any amount for the purposes of entertaining the appeal on merits. An illustration of such a case would be where the dispute is covered in favour of the party by a decision of a higher forum".

In the result, the High Court quashed the order dated 18.10.2012 passed by the Commissioner (Appeals) Central Excise, Pune-I and remanded the matter to him for fresh disposal of the stay application after considering the submission of the petitioner and taking a prima facie view on the same.

(See 2013-TIOL-10-HC-MUM-CX)


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