N. B. PATEL, P. R. GOKULAKRISHNAN, J. ( 1 ) MR. Dave learned Counsel appearing for the petitioner wants Permission of this Court to delete respondent No. 2 from the array of parties. Permission granted. Respondent No. 2 is deleted from the array of parties. ( 2 ) RULE Mr. B. B. Naik learned Counsel appears for respondents Nos. 1 and 3 and waives service of rule. ( 3 ) LEARNED Counsels appearing for the respective parties herein have no objection for taking up this matter today for final hearing. ( 4 ) THE main contention of the petitioner is that the Collector of Central Excise (Appeals) has not given opportunity to the petitioner to appear and represent its case for having the deposit dispensed with. It is further contended that cyclostlyed orders are being passed both at the interlocutory stage and also at the final sage without applying mind regarding the genuineness of the contentions raised by the party concerned for the purpose of dispensing with the deposit. Section 35f of the Central Excises and Salt Act 1944 reads as follows:35 Deposit pending appeal of duty demanded or penalty levied :- Where in any appeal under this Chapter the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act the person desirous of appalling against such decision or order shall pending the appeal deposit with the adjudicating authority the duty demanded or the penalty levied provided that where in in particular ease the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty leveled 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 Interests of review. It is seen from the order passed by the Collector of Central Excise (Appeals) which is at Annexure has to the Special Civil Application that the Collector (Appeals) has only considered the submission for stay in the application filed by the petitioner herein in the said order the Collector has stated that be is not satisfied that pre-deposit required under Sec. 35f of the Central Excises and Salt Act 1944 would cause such undue hardship as to warrant waiver of the same After such observations the Collector (Appeals) has directed the petitioner to deposit the said amount immediately and produce evidence of such deposit within two weeks of the order There is also a further condition to the effete that if such deposit is not made the appeal is liable to be dismissed We find from Annexure D collectively to the Special Civil Application that the appeal was dismissed for non-compliance with the direction given by the Collector (Appeals) at Annexure C. Since in this case there is a specific averment to the effect that the petitioner was not heard and since we find from the order passed by the Collector (Appeals) which is at Annexure C to the Special Civil Application that no such hearing was given the orders of the Collector (Appeals) both at Annexure C and D have to be quashed Mr. B B. Naik learned Counsel appearing for respondents Nos. 1 and 3 was confronted with the Bench decision of our High Court made is Special Civil Application No 693 of 1990 dated 22-2-1990 which came to be passed under similar circumstances wherein it is laid down that it is now well settled that before dismissing even an application for stay the Collector of Central Excise (Appeals) is required to hear the applicant Mr. B. B. Naik has nothing more to add against the observations made in the said judgment Since there is a specific averment in this case that the petitioner was not heard the orders passed by the Collector (Appeals) both at Annexures C and D ate set aside ( 5 ) IN the result this petitions is allow The Collector (Appeal) is directed to re-hear the stag application and dispose of the same after giving an opportunity of hearing to the petitioner Respondents Nos. 1 and 3 are directed not to implement the order passed by respondent No 3 which is at Annexure A to the Special Civil Application till the application for stay in disposed of rule is made absolute accordingly with no order as to costs (KMV) Rule made absolute. .