9911796707
TMI Blog2004 (9) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of the petitioner against recovery of duty, penalty and interest on the condition that the petitioner may deposit ₹ 1.50 crores towards pre-deposit and report compliance to it by 13.09.2004. 2. Learned Counsel Shri Mihir Joshi appearing for Mr. S.N.Thakkar for the petitioner, relying on the judgment of the Hon'ble Supreme Court in case of Mehsana District Cooperative Milk P.U.Ltd. V/s Union of India in 2003(154) ELT 347 (SC), submitted that the learned Tribunal has not at all considered the prima facie case of the petitioner on merits and without assigning any reasons for granting conditional stay in favour of the petitioner disposed of his application. Therefore, the impugned order passed by the Tribunal at Annexure ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without application of mind and without assigning reasons in its order and without dealing with the contentions raised by the petitioner before it, passed the impugned order of conditional stay whereby the petitioner is seriously prejudiced. 4. Under Section 35(F) of the Central Excise Act, 1944 (for short the Act ) in any appeal filed under the said 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 Authority or any penalty levied under the Act and the persons desirous of appealing against such decision or order shall have to deposit with the adjudicating authority the duty demanded or the penalty levied pending the appeal. However, under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order. However, conjoint reading of the entire order makes it clear that the learned Tribunal has kept in mind all the contentions raised before it by the petitioner and it appears that it has rightly refrained itself from dealing with the said contentions and answer it at this stage in the application as the same were required to be gone into and decided on merits while deciding the main appeal no. E/2147/04/Mumbai filed by the petitioner finally. From para 7 of the impugned order passed by the learned Tribunal, it is clear that the learned Tribunal has directed the petitioner to deposit only ₹ 1.50 crores towards pre-deposit and not full amount and on that condition stay was granted against recovery of duty, penalty and interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. 8. As stated earlier, we have been taken through the impugned order at Annexure 'E' passed by the Tribunal by learned counsel Shri Joshi and having carefully gone through the same we are of the considered opinion that the learned Tribunal has rightly refrained itself from deciding the contentions raised before it on merits. Otherwise, it would have seriously caused prejudice to the case of either parties. While granting interim stay on condition, the appellate authority or the Tribunal must necessarily keep in mind all the relevant facts and circumstances of the case before it or him and pass appropriate order. In the instant case, when the learned Tribunal has rightly exercised its jurisdiction and passed conditional order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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