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TMI Blog2020 (9) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, this Court finds that there is no examination of prima-facie case of the assessee either by the Tribunal. Since the order of the Tribunal fails to meet the requirement of law, inasmuch as prima-facie case of the revisionist has not been examined or even referred to, as such, the order of the Tribunal under challenge is not liable to be sustained. This revision is disposed of with the direction upon the appellate authority to conclude the proceedings in pending appeal within a period of three months from the date of presentation of a copy of this order, provided the revisionist furnishes bank guarantee of 10% amount of tax within four weeks, which shall remain subject to the final determination made in appeal. - SALES / TRADE TA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, 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. 36. In view of the above, we are of the considered opinion that as the Appellate Authority has not addressed to itself any of the issues involved in the appeal rather has gone to the issue of financial hardship which was unwarranted and uncalled for in the fact situation of this case. The order impugned cannot be sustained in the eyes of law and we have no option but to allow this petition and set aside the order impugned . An order of the Apex Court in Mehsana District Cooperative Milk P.U. Ltd. Vs. Union of India, 2003 (154) E.L.T. 347 (S,C,) is also relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of stay/ waiver application, the matter may be remitted back to the Tribunal for fresh consideration. It is settled that the appellate authority for the purposes of consideration of waiver cum stay application is required to examine the prima-facie case, in addition to the financial condition of the assessee. In the facts and circumstances of the present case, this Court finds that there is no examination of prima-facie case of the assessee either by the Tribunal. Since the order of the Tribunal fails to meet the requirement of law, inasmuch as prima-facie case of the revisionist has not been examined or even referred to, as such, the order of the Tribunal under challenge is not liable to be sustained. At this stage, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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