PRAKASH TATIA, J. - (1.) THE issue involved in this writ petition is whether before passing any order under Section 85 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 opportunity of hearing is required to be given to the petitioner, seeking waiver of condition of the predeposit.
(2.) 1996(83) E.L.T 486(SC) ], opportunity of haring is not required before deciding the prayer for waiver of predeposit condition provided under the proviso to Section 35 of the Central Excise Act , 1944 and for passing the interim order of stay. Learned counsel for the petitioner submitted that same authority was given direction by this Court in W.P.(T) No.441 of 2012 ( M/s Panch Sheel Udyog Vs Union of India and ors.) decided on 3rd February, 2012 to afford opportunity of hearing to the writ petitioner of that case and consider the prayer of the said writ petitioner for waiver of condition of predeposit of the duty, interest and penalty and for stay. Inspite of having said decision of Division Bench of this Court before the said authority, the authority passed the order impugned dated 15th March, 2012 in gross disregard to the order passed by Division Bench of this Court. Learned counsel further submitted that subsequent to the order passed in M/s Panch Sheel Udyog, the Division Bench of this Court again on 23rd March, 2012 in W.P.(T) No.1502 of 2012 issued same direction to the same authority. The learned counsel for the petitioner further submitted that the case of M/s Jesus Sales Corporation Ltd. has been considered by a Full Bench of the Delhi High Court in the case of J.T.(India) Exports Vs. Union of India [2002 (144) ELT 288 (Del.)] along with several other judgments and traced out the history of the principle of natural justice, starting from the case of Ray Vs. Local Government Board(1914) 1KB 160 to several cases of Supreme Court, and it has been held that even if a statute is silent, with no positive words in the Act or Rules spelling out need to hear the party whose rights or interests are likely to be affected, requirement to follow fair procedure before taking a decision must be read into statute, unless statute provides otherwise. By a process of judicial interpretation, two rules have been evolved as representing the principles of natural justice in judicial process, including quasi judicial and administrative process. First, "no man shall be a judge in his own cause  and second, "hear the other side . Not only this, the Full Bench of Delhi High Court held that natural justice is another name of the common sense justice. The Calcutta High Court in the case of Eveready Industries India Ltd. Vs. Union of India [2010(257) E.L.T. 71(Cal.)] even after considering the Circular of C.B.E. and C dated 30th March, 1999 stipulating that in case of predeposit, authority should pass a reasoned order in an objective manner considering facts even if no hearing granted, held that whenever an order having civil consequences passed, principles of natural justice be complied with and matter was remanded to the authority concerned i.e., the Commissioner of Central Excise (Appeal), Kolkata . The Eveready Industries case also considered the case of M/s Jesus Sales Corporation Ltd. The Division Bench of Rajasthan High Court in the case of Autolite (India)Ltd. Vs. Union of India [2003(153) E.L.T. 46(Raj.)] also considered the case of M/s Jesus Sales Corporation Ltd., in the matter arising out of the same issue under Section 35F of the Central Excise Act, 1944 and held that 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 and in that case following earlier decision the High Court itself ordered that requirement of predeposit of the duty demanded and the penalty imposed against the appellant shall not be imposed for a period of three months within which the Commissioner(Appeals) was directed to decide the appeal itself. The Calcutta High Court again considered the same issue under Section 35F of the Central Excise Act, 1944 and after considering the case of M/s Jesus Sales Corporation Ltd. held that in the interest of fair play and natural justice, petitioner ought to have been given an opportunity of hearing.
(3.) LEARNED counsel for the petitioner further submitted that there is gross indiscipline and judicial impropriety on the part of the Commissioner (Appeals), who even after decision of this Court in M/s Panch Sheel Udyog has passed the ex parte order in the present case.;