2005 (11) TMI 400

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

...., for the Appellant. Shri S.S. Bhagat, DR, for the Respondent. [Order per : Moheb Ali M., Member (T)]. -  This application for modification of Tribunal's Stay Order No. S/115/WZB/05/C-I, dated 8-2-2005 [2005 (191) E.L.T. 542 (Tribunal)] is a second of its kind, the first having been rejected by the Tribunal in Order No. M/432/WZB/2005/C-I, dated 26-4-2005 [2005 (192) E.L.T. 270 (Tri.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....seven only), nearly one-sixth of the total demand. The Bench in para 4 of its order held that "There is a clear cut bar for availment of credit on inputs on which the duty has been paid prior to 1-4-2000." Thus having held that the applicant has not made out a strong prima facie case in his favour, the Bench ordered pre-deposit of 1/6th of the amount demanded. 3. Subsequently, the applican....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....es this fact into consideration while seeking modification of the Tribunal's stay order. We may note that the Hon'ble High Court has also had this in mind while disposing off the petition and directing the Tribunal to consider the application for modification afresh. The ld. Advocate during the course of arguments pleaded that when all other assessees are entitled to pay back the wrongly availed c....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....as directed the Tribunal to decide the issue on merits. 8. The appellants contention that the provisions of sub-section (5) of the Section 88 in the Finance Act be applied for the purpose of determining the quantum of pre-deposit under Section 35F is not acceptable. In the present case the Commissioner decided that the amount was due from the applicant as early as 27-10-2004, after a due p....