- (1.) Learned counsel for the petitioner vehemently submitted that in spite of this Court's order, which has been placed on record wherein the Appellate Authority, Commissioner (Appeals) Central Excise and Service Tax, Ranchi, has passed the order on application of the appellants filed under Section 35F of the Central Excise Act, 1944 without affording the opportunity of hearing, thereby the said authority is deliberately floating the order of this Court. It is also submitted that the said Appellate Authority has relied upon one of the judgment of Hon'ble Supreme Court delivered in the case of Union of India Vs. M/s Jesus Sates Corporation Ltd., 1996 83 ELT 486 and did not mention the orders passed by the Division Bench of this Court in writ petitions, copies of which have been annexed along with the writ petition, out of one is order passed in W.P. (T) No. 441 of 2012 (M/s Panch Steel Udyog Vs. The ) Union of India & Ors) dated 3rd February, 2012 which is )y the order passed prior to impugned order passed by the Appellate Authority and subsequent is order passed in W.P. (T) No. 1502 of 2012 (M/s Caparo Engg. India Lt. Vs. The Union of India & Ors.) dated 23th March, 2012 and if the petitioner would have been given opportunity of hearing, the petitioner may have brought to the notice of the Commissioner (Appeals) Central Excise and Service Tax, Ranchi, that the said judgment of the Supreme Court has been interpreted by various High Courts and it has been held that the judgment of Hon'ble Supreme Court is not the law laying down the law against the personal hearing to the assessee in the matter of relief of dispensing with the requirement of the pre- deposit. It is also submitted that the learned Commissioner also did not refer any judgment passed after 1996 wherein the said M/s Jesus Sales Corporation Ltd. was considered and, therefore, the learned Commissioner, if was of the view that it can decide the matter without affording the opportunity of hearing to the parties because of said M/s Jesus Sales Corporation Ltd. Case delivered about 16 years ago then he himself should also have looked into the recent judgments on the same issue before arriving at a conclusion.We also considered the circular of the Central Board of Excise and Customs dated 3rd March, 1999 wherein also there is reference of the judgment of Hon'ble Supreme Court, M/s Jesus Sales Corporation Ltd. and subsequent judgments of Gujrat High Court delivered in the year 1998 and 199 only.
(2.) Be that as it may be, at the request of learned counsel for the respondents, time is granted for filing counter affidavit so as to examine the legal position.
(3.) Put up this case on 9th May, 2012. In the meantime, operation of the impugned order shall remain stayed.;