2005 (7) TMI 116

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.... Parikh, the learned Advocate for the petitioner. None appears on behalf of the respondents though Mr. Malkan had prayed for time on 15th July, 2005 and his request had been granted. 2. The limited issue which the Court is called upon to decide is whether the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (CESTAT), while disposing of Stay Application No. E/S/2796/04-....

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....n appeal and the Commissioner (Appeals) upheld the stand of the Department, against which the petitioner preferred appeal before the CESTAT. Along with the appeal, the petitioner had moved an application seeking stay of operation of the impugned order and dispense with making of pre-deposit. On 29th March, 2005, CESTAT made an order directing the petitioner to deposit a sum of Rs. 30 lakhs treatin....

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..... 5. On going through the impugned order of Tribunal, it is apparent that, after recording facts in paragraph Nos. 1 to 7 of its order, the 'Tribunal has in paragraph No. 8 stated that, "The appellants pleaded financial hardship and the matter is said to be pending before the BIFR". Thereafter, in paragraph No. 9, reference to Supreme Court decision in case of Metal Box [2003 (155) E.L.T. 13 (S....

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.... appellate authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate Authority should have addressed its mind to the prima facie merits of the appellants' case and upon being satisfied of the same determined the quantum of deposit taking into consideration the financial hardship and other such relevant fac....