Prima facie theft is not clandestine removal for duty evasion at the stay stage, so pre-deposit was waived.

At the stay stage, cigarettes allegedly lost by theft were not treated on a prima facie basis as clandestinely removed with intent to evade duty. The police had intercepted a van carrying the cigarettes and initiated investigation, but that factual setting did not justify equating the alleged theft with wilful evasion for pre-deposit purposes. Waiver of pre-deposit was therefore granted and recovery was stayed pending disposal of the appeal.

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Issues: Whether, at the stay stage, cigarettes allegedly lost by theft could be treated as clandestinely removed with intent to evade duty, and whether waiver of pre-deposit and stay of recovery should be granted.

Analysis: The police had intercepted a van carrying the cigarettes and had initiated investigation. On a prima facie assessment, theft was not equated with clandestine removal with intent to evade duty.

Outcome: The stay application was allowed, waiver of pre-deposit of duty was granted, and recovery was stayed till disposal of the appeal.

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