2004 (9) TMI 133

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....efly stated the facts giving rise to the present writ petition are as follows : A demand of Central Excise duty to the tune of Rs. 19,69,836/- has been confirmed by the Commissioner Central Excise (Appeals) which covers two periods i.e. June to March, 1994 amounting to Rs. 7,98,225/- and April to July, 1994 amounting to Rs. 11,71,611/-. The petitioners preferred an appeal before the Tribunal. Along with the appeal an application for waiver of pre-deposit of the duty was also made. The Tribunal by the impugned order had found that the merits .of the case are debatable and the financial position of the company is sound as they have cash in hand nearly Rs. one crore besides other assets etc. to the tune of Rs. seven crores. As seen from the....

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....case on merit. In case it is covered by the judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain on the appellant running in a good financial condition. The arguments that appellant is in a position to deposit or if he succeeds in appeal, he will be entitled to get the refund, are not the considerations for deciding the application. The order of the Appellate Authority itself must show that it had applied its mind t....