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TMI Blog2011 (7) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. Petitioner Company had challenged the order-in-original made by the Joint Commissioner of Central Excise, Allahabad dated 30-8-2010 by way of an Appeal under Section 35-A of the Act, 1944. Along with the Appeal the petitioner Company also made an application for waiver of the disputed amount with reference to the provisions of Section 35-F of the Act, 1944 termed as stay application. Along with the application, the petitioner in order to establish that they had a prima facie strong case relied upon the six judgments of the Tribunal for the proposition that the value of the goods manufactured on behalf of loan licensee are not to be added in computing the aggregate value of the goods manufactured by the Company. Therefore, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he clearance of goods made by the petitioner company. He submits that the judgment of the Tribunal which are binding upon the Commissioner (Appeals) have not been considered while recording a finding that the petitioner did not have a prima facie strong case, under the impugned order. He submits that the judgments relied upon have completely been ignored and, therefore, the order of the Commissioner (Appeals) cannot be legally sustained. It has also been brought to the notice of the Court that in respect of similar matter of different year, proceedings were pending before the Central Excise Service Tax Appellate Tribunal in Excise Appeal No. 1165 of 2009 wherein an order was passed in 13-11-2009 staying the recovery of the disputed amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CUS. & C. Ex., Meerut-I reported in 2005 (184) E.L.T. 347 (All.) in paragraph 35 has held as follows : "In view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case it is covered by the judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer." 12. Examining the orders of the Commissioner (Appeals), this Court finds that there is complete non-consideration of the six judgments which had been relied upon by the counsel for the petitioner in support of his plea for establishing a strong prima facie case. Such non-consideration of the judgment vitiates the order impugned. Therefore, in the facts and circumstances of the case, with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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