LAKSHMANAN, CJ. - (1.) THIS writ petition is filed by the petitioner against the interim order passed by the Commissioner of Customs and Central Excise (Appeals) Jaipur, respondent No. 2 herein, dated 13. 4. 2000 dismissing the application under Sec. 35 F of the Central Excise Act, 1944 for dispensing with the pre-deposit of duty demanded from the petitioner vide order No. 101/97 dated 5. 1. 1998 passed by the ACCE, Division, Ajmer together with the memo of appeal filed by them against the impugned order. The Commissioner of Customs and Central Excise (Appeals)- respondent No. 2 rejected the said application following the decision of the Supreme Court in the case of Union of India and others vs. Jesus Sales Corporation (1), holding that if the points raised in appeals or application have been taken into consideration at the time of passing the order, such order cannot be held to be invalid been accorded.
(2.) IN the light of the above Supreme Court decision, the respondent No. 2 was of the opinion that the petitioner has failed to make out a case for non-deposit of the duty demanded. Hence, the application for waiver of pre-deposit of the duty demanded was rejected. However, three weeks time from the date of passing the said order was granted to the petitioner for producing evidence of pre-deposit. Mr. Alok Sharma, the learned counsel for the petitioner has submitted that the order impugned in the writ petition is vitiated by non-compliance of principle of natural justice in as much as the petitioner firm was not given any opportunity of personal hearing and the chance to show financial hardship to justify the excise of discretion of waiver of pre-deposit in favour of the petitioner firm. It is further submitted that the said order has been passed without application of mind as evident from the fact that it is a cyclostyled order with the blanks merely filled in with reference to the petitioner firm. The order dated 13. 4. 2000 is, therefore, liable to be set aside on this ground also. We have considered the submissions made by the learned counsel for the petitioner and also have perused the pleadings and also the order impugned in this writ petition. We are of the opinion that the order impugned in this writ petition does not suffer from any infirmity. Sec. 35 F of the Central Excise Act, 1944 lays down that person desirous of appeal against the order in original shall, deposit with the adjudication authority the duty demanded or the penalty levied. It also stipulates that if, in any particular case the Commissioner (Appeals) is of the opinion that the deposit of duty demanded or penalty levied would cause under hardship to such person, he may dispense with such deposit subject to such conditions as he may deem fit to imposed so as to safeguard the interest of revenue. As pointed out by various decisions of the Apex Court and also of the several High Courts, while passing the order u/s 35 F of the Central Excise Act, 1944, that interests of the revenue as well as of the assessee have to be taken into account and safeguarded.
(3.) THE Assistant Commissioner has ordered recovery of rupees one lac twenty thousand three hundred nine from the petitioner. In our opinion, the interest of justice will amply be met if we direct the petitioner herein to deposit 50% of the amount demanded by the Assistant Commissioner, namely Rs. 60,000/- within one month from today. By this direction, the interests of the revenue is also safeguarded and protected. THE respondent No. 2 while rejecting the stay application of the petitioner has directed the petitioner to deposit the entire amount of Rs. 1,20,309/- within three weeks from the date of order, which was passed on 13. 4. 2000 and if the petitioner fails within the stipulated time to comply the order, the appeal filed by the petitioner shall be liable to be rejected within any further reference. THE order is dated 13. 4. 2000 and the period of three weeks had already been expired. Learned counsel for the petitioner is not in a position to state that because of the non-deposit, the appeal has already been disposed of by the Commissioner (Appeals) or not. THE order of the Commissioner Customs and Central Excise (Appeals) is now modified. We direct the Commissioner (Appeals) to accept 50% deposit and restore the appeal if it has already been rejected for non- compliance of the directions issued and to dispose of the appeal on merits and in accordance with law after affording opportunity of hearing to the petitioner. The writ petition is disposed off with the above directions. Note to the Office: Office is directed to forward a copy of this order to the Commissioner. Customs and Central Excise (Appeals)-respondent No. 2, Jaipur. . ;