TaxTMI 
TaxTMI 
TaxTMI 
2011 (6) TMI 655
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....ommissioner's subsequent order of dismissal of the appeal filed by the party. After examining the records and hearing both sides, we have found this case fit for summary disposal. Accordingly, after dispensing with pre-deposit, we take up the appeals. 2. The appellant is carrying on the business of duty-free shop at Goa International Airport. The brief facts of the case as stated by the appellant are as follows: On 26.5.2008, a theft/burglary took place at the above duty-free shop which is inside a high security area of the airport. A First Information Report was lodged with the local police by the CISF personnel in charge of security of the area on the same day. An officer of CISF and a local policeman were arrested in that connecti....
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....irecting the appellant to pre-deposit a sum of Rs.30,00,000/- (Rupees thirty lakhs only) on or before 31st of July, 2010 subject to which there shall be a stay on the balance of duty demanded, during the pendency of this appeal. Failure to comply shall result in dismissal of the appeal without any further reference to the appellant." The party did not make any pre-deposit. They challenged the above order dated 16.6.2010 in appeal No.C/536/10 before this Tribunal. That this appeal was filed along with a stay application was also communicated to the Commissioner (Appeals) through memo dated 23.7.2010, wherein it was also requested that the stay order dated 16.6.2010 be kept in abeyance. Subsequently, however, the learned Commissioner (Appeal....
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....appeal had already been filed with this Tribunal against his stay order dated 16.6.2010. According to the learned counsel, both the stay order and the final order of the Commissioner (Appeals) are liable to be set aside and the case liable to be remanded to the appellate authority for fresh decision on merits without insisting on pre-deposit. 4. The learned SDR is not opposed to remand of the case, though it is his submission that the stay matter also should be remanded for fresh decision. In this connection, he has claimed support from order No. A/117-118/11/CSTB/C-I dated 4.3.2011 passed by this Bench in the case of GKN Sinter Metals Ltd. vs. CCE, Goa. His focus is on para 4 of the said order, which refers to a judgment of th....
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....oms Act or under Section 35F of the Central Excise Act, the appellate authority or the appellate Tribunal, as the case may be, should first examine whether the appellant has prima facie case on merits. Unfortunately, in the present case, the learned Commissioner (Appeals) did not find it 'feasible to go into the merits of the case'. Secondly, where the appellant has pleaded financial hardships, the appellate authority should consider that plea as well. In the present case, the learned Commissioner (Appeals) has noted that the appellant did not plead any financial hardships. On a perusal of the text of the stay application filed by the appellant before the Commissioner (Appeals), we find that it had been stated in clear terms by ....
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.... case on merits while directing them to make pre-deposit. In the instant case, on the other hand, the lower appellate authority consciously refused to consider the assessee's case on merits saying that it was not 'feasible' to do so. It must be feasible for the Commissioner (Appeals) to consider a given case on merits before directing pre-deposit under Section 129E of the Customs Act. Thus the factual situation obtaining in the present case is peculiar in contrast with the cases cited by the learned counsel. It goes without saying that a decision in a given case should depend squarely on the peculiar facts of that case coupled with the applicable provisions of law. On the facts of the present case, we are inclined to direct the Commissioner....