Whether ex parte decision is sustainable when stay order as well as final order was passed without hearing the assessee?

PJ/CASE LAW/2016-17/3051

Case: ADHUNIK POWER TRANSMISSION LTD. Vs UNION OF INDIA
Citation: 2015 (325) E.L.T. 865 (Jhar.)
Issue: Whether ex parte decision is sustainable when stay order as well as final order was passed without hearing the assessee?
Brief Facts: This writ petition has been preferred challenging the ex parte order passed by the Commissioner (Appeals), Central Excise & Service Tax, Ranchi, whereby, stay application has been decided ex parte and there was an order to deposit whole amount within a period of one month and as the pre-deposit was not complied with, an appeal preferred by the petitioner before the Commissioner (Appeals) has also been dismissed. As ex parte order was passed for pre-deposit and there was non-compliance of the said order, therefore, present writ petition has been preferred with a prayer that the stay application may be revived and let the Commissioner (Appeals) be directed to hear the petitioner or to its representative and decide the stay application as well as the appeal preferred by the petitioner.
Reasoning of Judgement: It appears that the Stay-Order No. 07/JSR/2011, dated 5th January, 2012 [as stated at Annexure-A to the counter affidavit which is a communication by the Superintendent (Appeals), Central Excise & Service Tax, Ranchi] and Stay Order No. 07/JSR/2011, dated 5th December, 2011 [as stated in the order passed by the Commissioner (Appeals), Central Excise & Service Tax, Ranchi] was passed without giving any opportunity of being heard to the petitioner. The stay application was decided ex parte and there was direction to make the payment of amount within a period of one month.
As this amount was not deposited, an appeal preferred by the petitioner under Section 35 of the Central Excise Act has also been dismissed. This is the communication which is annexed at Annexure-3 to the memo of this writ petition.
Thus, it appears that the Commissioner (Appeals) should not have decided ex parte stay application. Moreover, the order passed in the stay application has also not yet been served upon the petitioner nor it is annexed with the counter affidavit. As there is violation of principles of natural justice in deciding the stay application which is for waiver of the deposition of the amount, they hereby revive the appeal as well as the stay application preferred by the petitioner against the Order-In-Original No. 13/S-Tax/Addl./Commr./2011.
Decision: - Matter remanded to Commissioner (Appeals) for fresh decision on stay application after hearing petitioner
Comment: The gist of the case is that the opportunity of hearing must be granted to the assessee and Ex parte order passed on stay application without hearing petitioner is violation of principles of natural justice.
Hence in the present case matter remanded to Commissioner (Appeals) for fresh decision on stay application after hearing petitioner.

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PJ/CASE LAW/2016-17/3051

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