- (1.) HEARD learned counsel for the parties. The respondents sought time to file reply to the writ petition.
(2.) IT appears from the facts of the case and argument of learned counsel for the petitioner that on 19th December, 2011, the Commissioner (Appeals), Central Excise and Service Tax, Ranchi passed the order rejecting the petitioner's application under Section 35F of the Central Excise Act, 1944 without affording any opportunity of hearing to the writ petitioner. The writ petitioner challenged the said order dated 19th December, 2011 by preferring writ petition no. 441 of 2012, which was allowed by the Division Bench of this Court by order dated 3rd February, 2012 and the Commissioner (Appeals), Central Excise and Service Tax, Ranchi was directed to pass fresh order after giving opportunity of hearing to the writ petitioner. In view of the said direction, the said appellate authority gave opportunity of hearing to the writ petitioner and passed the order dated 11th April, 2012. It appears that Commissioner (Appeals) granted some relief to the writ petitioner when he earlier passed the order dated 19th December, 2011 and directed the appellant to deposit 50 % confirmed demand for entertaining the appeal preferred by the petitioner. It further appears that when said order was set aside and when the said authority was directed to give opportunity of hearing to the writ petitioner, the said appellate authority became wise and rejected the application of the writ petitioner for dispensing with from pre -deposit of the amount for maintaining the appeal. Without commenting much, we may observe here that this change in view of the appellate authority if accepted to be corrected then probably this also indicates that hearing to petitioner may have been more beneficial to the revenue, provided the attitude of authority is bonafide. Other inference can be drawn that by not hearing the petitioner in the matter for dispensing with the condition of pre -deposit the same authority has caused loss to the revenue by earlier order. We are not commenting more because of the reason that in spite of the order passed by Division Bench of this Court dated 3rd February, 2012, the same authority again tried to justify his stand that opportunity of hearing is not required to be given in such matters to the appellant before it by relying upon the judgment passed in Union of India Vs. Jesus Sales Corporation Ltd., reported in 1996 (83) ELT 486 (S.C.) and issue relating to pre -hearing for deciding such application is subjudiced before this Court in another writ petition. Therefore, at this stage, there is no need to any more comment.
(3.) HOWEVER , learned counsel for the petitioner submitted that said judgment was not cited by him nor it was cited by any representative of the Revenue as representative of Revenue was not heard, which is apparent from the order dated 11th April, 2012. Therefore, even judgment of Jesus Sales Corporation Ltd.(Supra) was not brought to the notice of the petitioner and had it been done so, the writ petitioner could have shown that said judgments has already been interpreted by different High Courts and interpreted just otherwise than as interpretation has been given by the appellate authority.;