NAOLEKAR, J. - (1.) IN these writ petitions, ordered passed by the Commissioner (Appeals) Jaipur in exercise of powers under Sec. 35f of the Central Excise Act, 1944, are under challenge. It so happened that against the petitioners assessment orders were passed levying excise duty and penalty. All the petitioners approached the Commissioner (Appeals) Central Excise in appeal. Applications have been moved under Sec. 35f of the Act of 1944 to the Commissioner (Appeals) claiming exemption to deposit the duty demanded or penalty levied as a condition precedent for hearing the appeal. The Commissioner without hearing the parties dismissed the applicants. The wording used while dismissing the applications are:- ". . . . IN the light of the above, I have considered the stay application, and am of the opinion that the appellants have failed to make out a prima facie case that deposit of duty demanded or penalty levied would cause undue hardship to the appellants in the event of their application for stay being rejected. The application for stay for the waiver of pre-deposit of the duty demanded and penalty imposed is accordingly rejected. However, I grant the applicant 3 weeks time from the date of passing of this order to comply with the provisions of the Section 35f of the Act and for producing evidence of pre-deposit. After expiry of 3 weeks interim stay period, the departmental authorities would be free to initiate such action as provided in the Central Excise Act, 1944 or the Central Excise Rules, 1944 for recovery of dues in arrears. If the appellants fail to deposit the dues within the stipulated period of interim stay period, the appeal filed by the appellants pending disposal with the undersigned shall be liable to be rejected without any further reference to them. "
(2.) THE Commissioner specifically mentioned that he has not heard the parties before the orders have been passed under Sec. 35f of the Act of 1944. He relied upon the judgment of apex court in Union of India vs. Jesus Sales Corporation (1 ). In our opinion the judgment delivered by apex court is in favour of petitioners and not against them. Import of the judgment can be had from what has been held by the apex court while considering the third proviso to sub-section (1) of S. 4-M of the Imports and Exports (Control) Act, 1947. THE apex court held that the provisions requiring pre-deposit of the amount of penalty of tax imposed before the appeals are heard are of two types. THEre are some statutory provisions which specifically prescribe and provide that before the appeals are heard, the amount of tax or penalty imposed have to be deposited. No discretion has been left by the statute in question in the Appellate authority to waive such deposit taking into consideration the hardships of the appellants concerned. THEre are other provisions where the requirement of pre-deposit empowers the appellate authority to dispense with the amount of penalty unconditionally or subject to conditions. When such provision is made in the statute then it is necessary for the appellate authority to apply its mind on the question like a quasi judicial authority taking all the facts and circumstances of the case into consideration including undue hardship which has been pointed out on behalf of the appellant. In the peculiar facts and circumstances of the case the apex court took the view that if personal hearing was not given to the party it would not invalidate the order passed, whereunder the exemption was granted to the respondent to deposit 75% of the amount of penalty and he was directed to deposit 25% of the amount only. What has been laid down by the apex court is that when discretion is given to an authority to waive the pre condition of deposit for hearing the appeal, that has to be exercised after giving due weight to the facts and circumstances placed before it. The order rejecting or allowing the application must indicate application of mind by the authority and not to pass a stereotype order as passed by the Commissioner (Appeals) in the present cases. The authority is required to give proper and appropriate opportunity to the appellants before it to make out a case showing the hardship under which they are claiming entitlement for the exemption to deposit the pre condition. The opportunity so given may include giving of a personal hearing to the party which would be fully in consonance with the principles of natural justice, which are embodied in every statutory provision. S. 35f of the Act of 1944 provides as under:- "where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. " Meaning thereby, that deposit of the duty demanded or the penalty levied is a condition precedent for hearing of appeal. However, there is a proviso added to this Section which reads thus:- "provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. " The proviso gives discretion to the authority in a given case to condone the requirement of deposit of the duty demanded or the penalty levied as a pre condition for hearing the appeal, on such conditions as he may deem fit and proper. Although the proviso does not say expressly that before passing an order the Commissioner (Appeals) has to near the appellants. But if this proviso is read applying the principles of natural justice, it would be necessary for the authority to apply the facts of the case before exercising its discretion and if possible to give personal hearing to the appellants. The order so passed by appellant authority should indicate that before passing an order he has considered the case pleaded by the appellants showing undue hardship i. e. to say the order rejecting or allowing should contain reasons for arriving at that conclusion. Normally when the authority does not act in consonance with the principles of natural justice, the course adopted by this court is to quash the order and send the matter back for reconsideration as per principles laid down by the courts. However, in the present matters it has been pointed out by the advocates appearing before us that the Division Bench of this court vide its order dated 16. 11. 1999 has not remanded the case to the appellate authority to reconsider the application filed by appellant under Sec. 35f of the Act of 1944, but had directed that the pre-condition of depositing the amount will not be enforced, instead thereof the appeal itself shall be decided within three months and the interim relief of not depositing the amount shall continue till that date. Since the court has already taken up a view and direction has been given in identical matter, we also propose to follow the same rule and accordingly direct that the requirement of pre-deposit of the duty demanded and the penalty levied against the appellants shall not be enforced for a period of three months. The Commissioner (Appeals) is directed to dispose of the appeals filed by the appellants on merits within three months from the date of presentation of a certified copy of this order either by the appellant or by the department, Petitions stand disposed of accordingly. .;