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TMI Blog2021 (9) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... le hardship would be caused to the Revenue if the stay is not granted. To consider as to whether prima faice case has been made out by the Revenue, it may be necessary to have a consideration of the facts of the case and the merits of the appeal though not to the extent of deciding the appeal itself. With regard to the balance of convenience, the Tribunal has to examine the aspect that if stay is not granted what would be the consequence that will follow and with regard to hardship, that would be caused by the Revenue has also to be considered. If the stay is not granted, then, the respondent would seek return of the seized gold and that has to be ordered, then the appeal filed before the Tribunal itself would become infructuous - undu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing prayer in Miscellaneous Application pending Appeal, would amount to allowing the appeal itself. (c) Whether the Tribunal was correct in not considering the twin test laid down by the Apex Court and this Hon'ble Court in catena of cases while disposing of the Miscellaneous Application for stay pending appeal before it. (d) Whether the Tribunal ignored the law that unless the order of the First Appellate Authority in Order-in-Appeal No.550/2019 dated 14/11/2019 is stayed, pending the appeal before it, the smuggled absolutely confiscated gold had to be released which would be prejudicial to the interest of revenue. (e) The Tribunal being an quasi-judicial authority under the Customs Act, 1962 is also duty bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Authority has ignored the evidences, available on record which would clearly go to sustain the order of confiscation and the first Appellate Authority committed a serious error with regard to the legal issue relating to the burden of proof in respect of the seized gold bar under Section 123 of the Act and in spite of detailed memorandum having been presented on all these issues, the first Appellate Authority has ignored the same. The Tribunal by impugned order has dismissed the stay petition stating that the arguments of the Revenue are touching upon the merits of the case and the Tribunal finds that no prima faice case has been made out by the Revenue. 5. When this appeal was entertained, the Division Bench by order dated 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the appeal filed by the Revenue before the Tribunal. We are informed that the appeal is listed for hearing on 22.09.2021 and the Tribunal may consider to dispose of the appeal at the earliest. 7. For the above reasons, the appeal is allowed and the order passed by the Tribunal dated 03.03.2021 is set aside and there will be an order of stay of the order passed by the first Appellate Authority dated 14.11.2019 till the disposal of the appeal by the Tribunal. The Tribunal is requested to consider whether the appeal could be disposed of at the earliest. As we have allowed the appeal and set aside the order passed by the Tribunal dated 03.03.2021, it goes without saying the observations contained therein have also been set aside and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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