2005 (12) TMI 305

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....nt, Advocate, for the Appellant. Shri S.N. Prasad, SDR, for the Respondent. [Order per : Justice R.K. Abichandani, President]. -  While the stay application was being heard, the learned authorised representative for the department and the learned counsel for the appellant have requested us to dispose of the appeal itself. 2. We have heard both the sides at length. The learned....

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....here is also no indication as to whether any date was fixed for hearing the stay application, which was scheduled to held on 7-9-05. The Commissioner (Appeals), as it appears from paragraph 6 of the impugned order, for deciding the question of pre-deposit has simply observed that the appellant had failed to make out a prima facie case, without taking into consideration the contention that emanated....

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....accounts were maintained. 4. We are, therefore, of the view that the applications ought to be heard afresh by the learned Commissioner (Appeals) on merits for deciding whether interim stay should be granted in the context of provisions of Section 35F of the Central Excise Act, 1944. Both the appeals are, therefore, allowed by setting aside the impugned order dated 16-9-05 passed by the Com....