ORDER : By this petition, a challenge is made to the order dated 13-10-2015, whereby, the appeal preferred by the petitioner before the Commissioner, Central Excise and Customs (Appeals), Jaipur has been dismissed in absence of compliance of requirement of pre-deposit as per Section 129E of the Customs Act, 1962. 2. Learned counsel for the petitioner submits that aggrieved by the order passed by the Deputy Commissioner, Customs, an Appeal was preferred. After keeping the appeal pending for more than 10 months, it was dismissed without hearing the petitioner though is required as per Section 128 of the Act of 1962. The Commissioner (Appeals) even failed to consider an application was submitted by the appellant to inform that entire amount has already been recovered with encashment of Bank guarantee hence, condition to deposit 7.5% of the amount of duty stands satisfied. Ignoring the fact available on record, the appeal was dismissed, that too, by making comments/observations contrary to the record. The amount so recovered was not towards penalty, rather, the Bank guarantee was given against the Customs duty and if Bank guarantee is encashed, it is to be taken in satisfaction of the demand towards duty. The prayer is to set aside the impugned order with remand of the case for hearing of the appeal on merit. It is more so when during the intervening period of 10 months or so the appellant was never informed about non-payment of Customs duty to the extent of 7.5% to satisfy requirement of pre-deposit. 3. Learned counsel Mr. Vinay Mathur, appearing for the Revenue, has contested the case. It is submitted that chance of hearing under Section 128 is given only when the appeal is admitted. In the instant case, the petitioner failed to comply condition of Section 129E of the Act of 1962 thus, the appeal was not maintainable, hence, rightly dismissed by the Commissioner (Appeals). 4. We have considered rival submissions of the parties and perused the record. 5. The petition preferred an appeal to challenge the order of Deputy Commissioner of Customs. An application was filed to seek exemption from pre-deposit as entire amount of Customs duty has been recovered prior to filing of appeal. It was by encashment of Bank guarantee before filing of the appeal. 5. The petition preferred an appeal to challenge the order of Deputy Commissioner of Customs. An application was filed to seek exemption from pre-deposit as entire amount of Customs duty has been recovered prior to filing of appeal. It was by encashment of Bank guarantee before filing of the appeal. The appellant however worked the relevant column about pre-deposit as not applicable but then the Commissioner (Appeals) was informed about recovery of the amount with encashment of Bank guarantee thus the relevant column was not applicable. 6. The department had issued circular on 16th September, 2014. It was for a direction of adjustment of the amount paid during the course of investigation or audit. 7. The intention of the department was to adjust the amount already paid towards the condition of pre-deposit. The Customs duty imposed on petitioner was recovered with the encashment of the Bank guarantee and it was prior to filing of the appeal. When the encashment of Bank guarantee was to the extent of duty then the Commissioner (Appeals) has still ignored the aforesaid. It happened for the reason that after keeping the appeal pending for ten months without pointing out any defect, it was decided without giving opportunity of hearing to the appellant. As an outcome of which, the order was passed in ignorance of the application regarding exemption from pre-deposit. 8. The perusal of the order also reveals observation contrary to the facts. The way Commissioner (Appeals) has conducted the appeal, shows ignorance of the material available on record. The condition of pre-deposit get satisfied with recovery of the amount of duty which is much more than 7.5% of the duty imposed on the petitioner herein. 9. In view of the above, dismissal of the appeal in reference to Section 129E of the Act of 1962 cannot be said to be proper. The impugned order dated 13-10-2015 is thus set aside with remand of the case to the Commissioner (Appeals) for its hearing on merit. The parties are directed to remain present before Commissioner (Appeals) on 2nd May, 2015. 10. The way the impugned order has been passed by the Commissioner (Appeals), a cost of Rs. 20,000/- is imposed on revenue. The cost would be paid within a period of one month from today. The department would however be at liberty to recover the cost from the then Commissioner (Appeals). 10. The way the impugned order has been passed by the Commissioner (Appeals), a cost of Rs. 20,000/- is imposed on revenue. The cost would be paid within a period of one month from today. The department would however be at liberty to recover the cost from the then Commissioner (Appeals). It is looking to the fact that the way order has been passed needs to be deprecated and, as an outcome of the said order, the litigation has come to the High Court which could have been easily avoided. 11. The writ petition is allowed with the aforesaid. Petition allowed.