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TMI Blog2011 (6) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... ys, the stay order dated 16.6.2010 passed by the Commissioner (Appeals) is bad in law on account of non-consideration of case on merits and of the plea of hardships apart from negation of natural justice. orders of the Commissioner (Appeals) are liable to be set aside. appeals are allowed by way of remand - C/536 & 629/10 - A/265-266/2011-WZB/C-I(CSTB) - Dated:- 17-6-2011 - Mr. P.G. Chacko, Mr. Sahab Singh, JJ. Appearance: Shri Habibullah Badsha, Senior Advocate, for appellant Shri Manish Mohan, Authorised Representative (SDR), for respondent Per: P.G. Chacko These applications seek waiver of pre-deposit and stay of recovery in respect of an amount of duty demanded from the applicant. These arise in two appeals filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how-cause notice also proposed to revoke the bond executed under Section 59(2) of the Act. The demand of duty and other proposals were contested. In adjudication of the dispute, the Assistant Commissioner of Customs confirmed the demand of duty under Section 72(1)(a) on the ground of violation of Section 71 of the Act. Against this order of the adjudicating authority, the party preferred an appeal to the Commissioner (Appeals) and also filed therein an application for waiver of pre-deposit. The application for waiver was disposed of by an order dated 16.6.2010, the operative part of which reads as follows:- "I have examined the impugned order and stay petition. At the stay stage, it will not be feasible to go into the merits of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal of the goods, raised against the appellant, is factually untenable. It is submitted that the appellant has strong prima facie case against the demand of duty. It is also submitted that the stolen goods are covered by valid insurance policy and the beneficiary thereof is the Customs department. The grievance of the appellant, according to the learned counsel, is that their case on merits was not considered by the lower appellate authority before directing them to make pre-deposit under Section 129E of the Customs Act. It is further pointed out that, though the appellant had pleaded financial hardships, the lower appellate authority wrongly noted that they had not raised any such plea. Further, it is submitted that the learned Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-deposit to the appellant and remanded the cases to the lower appellate authority. In both the cases, the Bench found infirmities in the interim orders passed by the lower appellate authority. 6. We have given careful consideration to the submissions. An excerpt from the appellate Commissioner's stay order dated 16.6.2010 has already been included in this order and the same clearly discloses a basic flaw on the part of the lower appellate authority. After discussing the facts of the case, the learned Commissioner (Appeals), in the said stay order, says thus: 'At the stay stage, it will not be feasible to go into the merits of the case'. We are surprised at this observation of the learned Commissioner (Appeals). It is by now establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay order was challenged before the Tribunal, the appellate authority proceeded to dismiss the appeal on the ground of non-compliance. There is nothing on record to show that any opportunity of being heard was given to the appellant before dismissing their appeal on the said ground. 7. Both the orders of the Commissioner (Appeals) are liable to be set aside. It is ordered accordingly. The question which immediately arises is whether the case should be remanded for final decision on merits without pre-deposit. The learned counsel has cited a few instances of this Tribunal having ordered such remand to the lower appellate authority. But the facts of the present case are clearly distinguishable. In the cited cases, this Tribunal found that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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