Notice of hearing and prima facie unsustainable duty demand led to recall, stay of recovery, and waiver of pre-deposit.

An order passed without notice to the affected party may be recalled where non-service of hearing notice is accepted as sufficient cause, and the earlier dismissal was therefore recalled. In the same appeal concerning duty demand on an Export Oriented Unit, the tribunal noted that the EOU permission had been renewed, the unit was functioning as an EOU, and excise duty on inputs procured by an EOU was prima facie not warranted; on that basis, the demand was treated as not prima facie sustainable. Stay of recovery was granted and the requirement of pre-deposit was waived, with interim protection continuing pending disposal of the appeal.

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Issues: (i) Whether the earlier order could be recalled on the ground that the appellant had not been served notice of hearing; and (ii) whether the appellant was entitled to stay of recovery and waiver of pre-deposit in the appeal concerning duty demand on an Export Oriented Unit.

Issue (i): Whether the earlier order could be recalled on the ground that the appellant had not been served notice of hearing.

Analysis: The order had been passed without notice to the appellant, and the absence of service was accepted as sufficient cause to recall the earlier dismissal order.

Conclusion: The earlier order was recalled in favour of the appellant.

Issue (ii): Whether the appellant was entitled to stay of recovery and waiver of pre-deposit in the appeal concerning duty demand on an Export Oriented Unit.

Analysis: The Unit's EOU permission had been renewed, the appellant was functioning as an EOU, and excise duty on inputs procured by an EOU was held to be prima facie not warranted; on that basis, the demand was considered not prima facie sustainable.

Conclusion: Stay of recovery was granted and the requirement of pre-deposit was waived in favour of the appellant.

Final Conclusion: The recall application and the stay application were both allowed, with interim protection granted to the appellant pending disposal of the appeal.

Ratio Decidendi: An order passed without notice to the affected party may be recalled, and where the duty demand is prima facie unsustainable, recovery can be stayed and pre-deposit waived.

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