Per Shri V.P. Gulati :

The prayer in the application is for dispensation of the pre-deposit of Rs. 4,70,195/- demanded as duty.

2. The learned Advocate for the appellants has pleaded that earlier the matter had come up before the Tribunal when the appeal had been rejected by the learned lower appellate authority for non-compliance with the provisions of Section 35F and the Tribunal had remanded the matter to the learned lower appellate authority after directing the appellant to pre-deposit a sum of Rs. 1.25 Lakhs. The learned Advocate for the appellants pleads, the financial condition of the appellants since then has not changed and the amount already pre-deposited should be taken as compliance under Section 35F and the pre-deposit of the balance amount may be dispensed with pending appeal. He has also pointed out that the learned lower authority's order suffers from the vide of denial of principles of natural justice as could be seen from the order of the learned lower appellate authority and he referred us to para 2 wherein the learned lower authority has stated as under :-

This case was originally heard by this authority on the stay petition and also on merits. Hence, hearing the appellant again in the same matter is considered not necessary.

3. He has pleaded the original hearing also granted by the said authority was only in the context of stay proceedings and the appellants did not make all the pleas available to them in the matter. He has pleaded, the appellants had been denied an opportunity to putforth their case and there has been a denial of principles of natural justice. He has pleaded that the appellants had specifically asked for a personal hearing which is set out in para 2 of the order. He has, therefore, urged that prima facie the learned lower authority's order is not sustainable in law.

4. We have considered the pleas made by both the sides. We observe that as it is, as urged by the learned Advocate the learned lower authority's order prima facie is not sustainable for the reason that the appellants have been denied the benefit of the personal hearing. Therefore, there has been prima facie denial of principles of natural justice.

5. In the above view of the matter we grant the prayer of the appellants and hold that the amount already pre-deposited which is lying with the department would be adequate compliance with the provisions of Section 35F. We, therefore, order that the pre-deposit of the balance amount shall stand dispensed with and the recovery of the same stayed pending appeal.

6. In as much as the issue lies in a short campass, we take up the appeal itself for disposal with the consent of both the sides.

7. We observe that the learned lower authority has denied the appellants opportunity of hearing on the ground that they had already been heard at the stage of stay proceedings before him and he has held that the opportunity then given would not warrant giving another opportunity to the appellants. We observe that the proceedings at the stage of stay petition are interlocutory in nature and in very nature of the proceedings at that stage, indepth arguments are not permissible to be adduced. It is only at the time of final hearing that both the sides muster all the arguments with citations in support of their pleas. Any pleas made at the interlocutory stage cannot be taken to be the final pleas and the appellants have still a right to change their plea, if they so choose, when the matter comes-up for final hearing. In such a situation, therefore, the learned lower authority should have allowed them the opportunity of hearing when they had specifically requested for the same. This not having been done, we hold that the learned lower authority's order is not sustainable in law and we, therefore set aside the same and remand the matter to the learned lower appellate authority to adjudicate the matter de novo after affording the appellants an opportunity of hearing.