2000 (2) TMI 159

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....'s practice. 2. Both the appeals arise from common Order-in-Appeal Nos. 256 and 257/99 dated 3-11-1999 by which the Commissioner (Appeals), Chennai has dismissed the appeals under proviso to Section 35F of the Act for non deposit of duty of Rs. 8,54,942/-, like amount of penalty under Section 11AC, Penalty of Rs. 5 lakhs under Section 173Q on the name of the Enterprise and Rs. l lakh under 209A on the proprietary. The Commissioner has dismissed the appeals on the pretext that no personal hearing is required to be extended in terms of the Apex Court judgment rendered in the case of UOI & Others v. Jesus Sales Corporation Ltd. as reported in 1996 (83) E.L.T. 486. The Commissioner (Appeals) had directed the appellants to pre-deposit the ent....

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....is point by Circular No. 342/58/97-CX dated 8-10-1997 wherein it has been clarified that expression "packing" is considered as package containing a pre-packed commodity and quantity of products contained therein is also pre-determined. The packaging is generally done without the purchaser being present. The packages also contain information such as name of the manufacturer, quantity, value and other details of the product. He submits that only if these conditions are satisfied, then the item would be covered as a separate goods in terms of Chapter note supra. It is his contention that in the present case, the appellants sells the goods to the customer in his presence and there is no pre determined packaging by giving all the information of ....

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....t for the following reasons:- (a)        The Tribunal time and again have held that the judgement of the Apex Court rendered in the case of Jesus Sales Corporation Ltd. is not applicable to Section 35A proceedings and Commissioner was mandatorily required to give hearing. Despite this direction and large number of appeals remanded to the Commissioner on this ground, it is regretable that the Commissioner (Appeals) has disregarded the Tribunal's directions and continued to hold his view and pass similar orders holding that no hearing be granted. (b)        The Commissioner having directed the appellants to pre-deposit the entire amounts, including mandatory penalty under Secti....