ORDER M.C. Agarwal, J.
1. This petition under Article 226 of the Constitution of India is directed against an order dated 20-7-1994. passed by the Collector (Appeals), Customs and Central Excise, Ghaziabad whereby he declined to waive the condition of pre-deposit of the disputed amount under Section 35F of the Central Excises and Salt Act, 1944.
2. I have heard learned counsel for the petitioner and Shri U.N. Sharma, learned Chief Standing Counsel for the Union of India.
3. As agreed by the learned counsel before the parties the writ petition is finally disposed of at the admission stage without calling for a counter-affidavit.
4. The proviso to Section 35F says that where in any particular case the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of the revenue.
5. A perusal of the impugned order shows that the learned Collector (Appeals) has laid much emphasis on the merits of the appeal and has not considered at all the question of hardship claimed by the petitioner in his petition before him. The Collector (Appeals) has therefore, not disposed of the petitioner's application for waiver under the aforesaid proviso in a right manner and the important question of hardship to the appellant has not been dealt with at all. Therefore, this order cannot be sustained and the Collector should decide the question of waiver afresh.
6. For the above reasons, this writ petition is allowed. The impugned order dated 20-7-1994 is set aside and the Collector (Appeals), Customs and Central Excise, Ghaziabad is directed to dispose of the petitioner is application for waiver afresh after giving the petitioner/appellant a proper opportunity of hearing.
7. Parties shall bear of their own costs.