- (1.) The Court : Despite service none appears on behalf of the respondents.
(2.) In this writ petition M/s. Webel SL-Energy System Limited, the petitioner, a company incorporated under the provisions of the Companies Act, 1956, has challenged the order dated 12th October, 2009 passed by the Commissioner of Central Excise-I, Kolkata, respondent No. 3 directing the petitioner to deposit 25% of the total amount of duty confirmed and penalty imposed on the ground that the principles laid down in the judgement of the Apex Court in Union of India V/s. Jesus Sales Corporation, 1996 83 ELT 486 has no universal application since it was confined to the facts of the said case which is evident from the judgment in J.T. (India) Exports V/s. Union of India, 2002 144 ELT 288. Relying on the judgment in J.T. (India) Exports it has been submitted that a decision is an authority for what it decides and not for logically flows from the judgment. Since in the order impugned there is direction to deposit 25% of the total amount of duty confirmed and penalty imposed, civil rights have been affected. Therefore, in the interest of fair play and natural justice the petitioner ought to have been given an opportunity of hearing. Moreover, the impugned order does not deal with the merits of the application for stay which is Annexure-P/3 to the writ petition.
(3.) In order to appreciate the issue it is necessary to refer the relevant portion of the impugned order which is as under : "The appellants appeared for personal hearing on 22-8-08 before the predecessor of the former Commissioner (A) when they appeared. I am proceeding to dispose of the application for dispensing with pre-deposit as also their stay petition in compliance of Instructions contained in F. No. 275/8/2008-CS. 8A dated 20-2-2008 read with principles laid down by Hon'ble High Court and Supreme Court in the case of M/s. Usha Udyog V/s. CEGAT, 2003 156 ELT 201; by CESTAT in the case of New Tobacco Co. Ltd. V/s. Commissioner of Central Excise, Kolkata-III,2008 221 ELT 546 and as per pronouncement of the Supreme Court in the case of UOI v Jesus Sales Corporation, 1996 83 ELT 486. According to Supreme Court in the above case, stay petition and application for dispensing with pre- deposit can be disposed of without hearing. From a perusal of the Stay petition as also on reading the application for dispensation of pre-deposit, I do not find any fact in terms of which it may be possible to conclude that the appellants shall suffer irreparable private injury if pre-deposit is not dispensed with. In terms of guidelines mentioned in the case of Monotosh Saha V/s. Special Director, Enforcement Directorate, 2008 229 ELT 492, I partly allow application of the appellants for dispensing with pre-deposit and direct them to deposit the 25% of the total amount of duty confirmed and penalties imposed within two weeks of receipt of this order and report compliance within three weeks. On compliance of this order, recovery of the rest amount shall remain stayed till disposal of the appeal. Additional Commissioner of Central Excise, Kolkata-III Commissionerate and also concerned Divisional AC/DC are directed to inform within three weeks of the receipt of this order as to whether or not pre-deposit as ordered above under Section 35F of the Central Excise Act, 1944 has been made. In case of non-compliance of this order, the appeal is liable to be rejected.";