TaxTMI 
TaxTMI 
2009 (4) TMI 103
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....the applicants are seeking stay of the impugned order. 2. The ld. advocate appearing for the applicants submitted that since the Commissioner (Appeals) had passed the order dismissing their applications for stay on 18-12-08 in a mechanical manner, and without considering the prima facie case of the applicants, they had moved an application for modification of the stay order. However, the same was also dismissed without proper application of mind and without considering the prima facie case of the applicants and therefore, the applicants have filed the appeals along with the present applications. While referring to the decision of the Apex Court in Mehsana Dist. Co-op. Milk Pvt. Ltd. v. U.O.I. reported in 2003 (154) E.L.T. 347 (S.C.) and th....
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.... seek the following relief:- "The applicants submit that they have prima facie good case on merits. The Applicants, therefore, pray: (a) that the operation of the impugned Order dt. 12-1-2009 be stayed." It is elementary rule of law that the question of grant of stay of an order can arise only when it is an executable order. In the absence of any executable order, the question of grant of stay does not arise. The order dated 12-1-2009, which is the subject matter of challenge in the appeal, ex facie, discloses that it is an order rejecting the application for modification of the earlier order. By no stretch of imagination, it can be said to be an executable order. Therefore, on this ground itself, the question of grant of stay of the imp....
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....her authority on the point of liability of the appellant to deposit of the amount demanded by the lower authority. The main issue in such an application to be decided is whether the applicants are entitled to be heard on merits of the case without compelling the applicants to deposit the entire amount demanded by the Lower authority. 6. The perusal of the records discloses that what is challenged before the Tribunal is an order passed by lower authority, refusing to modify its earlier order. The concept of modification of the order implies exercise of the power in the nature of power of review of its earlier order. As rightly submitted by the ld. DR the law on this aspect is well settled by the decision of the Division Bench of the Bombay ....
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....ration on merits as indicated by us hereinabove before considering any application for modification of its previous order on merits. If the Tribunal finds that prima facie case for modification is made, then, only a Tribunal shall deal with such application on merits. The Tribunal shall be justified in rejecting frivolous applications at the threshold." 7. The Karnataka High Court in McDowell & Co. Ltd. case has clearly held that the Tribunal after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit under proviso to Sec. 35F of the Central Excise Act, 1944, cannot modify that order subsequently like an appellate authority, nor can keep tinkering with such an order as and when applications for modifi....
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....se by the lower Appellate authority. The concept of remand is totally different from the concept of review or modification. The remand is always by the higher authority to the lower authority and modification or review is by the same authority. Merely because the Apex Court remanded the matter for reconsideration of the same by the lower Appellate authority, it does not lead to lay down the law by the Apex Court that every Appellate authority has the power of review. 9. If the contention sought to be advanced on behalf of the applicants' representative in relation to the decision of the Apex Court in Mehsana Dist. Co op. Milk Pvt. Ltd., is accepted, then it would amount to misreading of said decision. In Delux Re-rolling Metal Pvt. Ltd., t....