Sanjib Banerjee, J. - (1.) THE writ petition of the year 2004 has been unnecessarily delayed for several years though it does not involve any substantial question of law or other matter of earth -shattering consequence. In course of an appeal, the petitioners applied for dispensation of the pre -deposit under Section 35F of the Central Excise Act, 1944. The petitioners were not represented on the day such application was taken up. The Tribunal directed the petitioners to make a pre -deposit of Rs. 7 lakh as condition precedent for the appeal to be heard.
(2.) THE petitioners say that the total quantum in dispute was to the hire of Rs. 8 lakh and, in any event, a view had been taken by another Tribunal as to the legal question involved. The petitioners say that in a case where excise duty has to be determined of a component going into the making of a product, as to whether the profit factor has to be included to assess the excise duty on the component would depend on whether the assessee is a profitable or a loss -making concern. The petitioners say that the Tribunal has held in some matters that the profit factor would not be taken into account for a loss -making unit and such opinion of the Tribunal is pending consideration before the Supreme Court. What the petitioners suggest is that the petitioners' appeal is meritorious and a prima facie assessment of the legal issue involved in the appeal would have resulted in either the entire quantum of pre -deposit being dispensed with or further lenience being shown to the petitioners. Implicit in the submission is the suggestion that a prima facie assessment on the merits of the appeal is required to be made in the adjudication of the undue hardship that may be caused to an assessee to deposit the entire or a part of the excise duty adjudged to be due. The petitioners applied for recalling of the order by which the petitioners were required to deposit Rs. 7 lakh as a condition precedent for the appeal being taken up on merits. The petitioners say that the relevant officer of the assessee received the notice but was indisposed shortly thereafter, resulting in the assessee or the other officers in the office not being made aware of the date of hearing of the relevant application. The petitioners say that a medical certificate was appended to the petitioners' recalling application but the matters referred to in such application were not taken into account by the Tribunal.
(3.) ORDINARILY , and even if a Court or a Tribunal may have reason to disbelieve a medical certificate or suspect that the grounds mentioned for the absence of representation on behalf of a party may not be bona fide, a lenient view is taken in such matters when an order has been made without the party having a chance to present his version of things at the hearing. Ordinarily and unless it appears that the party deliberately chose to absent himself or the recalling application is mala fide, any judicial or quasi judicial authority in this country should attempt to give a person an opportunity of hearing to place his side of things.;