TaxTMI 
TaxTMI 
2013 (4) TMI 389
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.... on an application for waiver of pre-deposit under Section 129E of the Customs Act, 1962. 3. In pursuance of a notice to show cause dated 20 September 2010, an order of adjudication has been passed against the petitioner on 30 March 2012 imposing a penalty of Rs.15 lakhs under Section 114 of the Customs Act, 1962. The allegation against the petitioner is that he was involved in a fraudulent export of fabric and readymade garments of inferior quality by grossly inflating the value of the export goods so as to avail of duty drawback or, as the case may be, DEPB benefits. Upon the passing of the order of adjudication, the petitioner has filed an appeal before the Commissioner (Appeals) and sought a waiver of the pre-deposit of the penalty imp....
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....t, 1947. The Supreme Court held that under the second proviso to Section 4-M, no appeal could be entertained unless the amount of penalty has been deposited. Hence, the power which was conferred by the third proviso to grant a dispensation of pre-deposit on grounds of undue hardship being a discretionary power was held as being by way of an exception. The Supreme Court held that an order passed after taking into consideration the points raised in the appeal or in the application shall not be held to be invalid merely on the ground that no personal hearing was afforded. The decision took note of the fact that while Section 4-M(2) requires the Appellate Authority to furnish a reasonable opportunity of being heard if the appellant so desires, ....
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.... deposit of the amount of the penalty be dispensed with unconditionally or subject to the conditions." 5. This decision of the Supreme Court has subsequently been followed, though in different contexts inter-alia of service jurisprudence in (i) Ganesh Santa Ram Sirur vs. State Bank of India (2005) 1 SCC 13 at para 30, (ii) Oriental Bank of Commerce vs. R.K. Uppal (2011) 8 SCC 695 at para 14. The decision of the Supreme Court in Patel Engineering Limited vs. Union of India (2012) 11 SCC 257 at para 38 followed the earlier decision in Jesus Sales Corporation (supra) in the context of an order of blacklisting. The judgment in Jesus Sales Corporation (supra) binds this Court. Hence an order on an application for waiver of predeposit cannot be ....
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....at the Commissioner of Appeals while passing an interim order ought not to pass non-speaking orders so as to obviate an allegation or complaint of a lack of application of mind by the authorities or a bias towards the revenue. The circular reiterates the requirement of a speaking order. A Full Bench of the Delhi High Court in J.T. (India) Exports vs. Union of India 2002 (144) E.L.T. 288, after considering the judgment of the Supreme Court in Jesus Sales Corporation (supra) held that even if a statute is silent in regard to a hearing being given to a party whose rights and interests are likely to be affected, the requirement to follow a fair procedure before taking a decision must be read into the statute, unless the statute provides otherwi....