TMI Blog2014 (8) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration after passing an appropriate order as to pre-deposit. We find that this exercise has not been done by the Tribunal in the present case and it has summarily upheld that the rejection of the appeal for failure or pre-deposit is impeccable and, therefore, we have no hesitation to hold that the Tribunal should have considered the pre-deposit issue perforce and to that extent the order has been rightly put to test by the appellant before this Court - Matter remitted back - Decided in favour of assessee. - C.M.A. NO. 703 OF 2014 AND M.P. NO. 1 OF 2014 - - - Dated:- 25-7-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. Mohd. Shafiq For the Respondents : Mr. A. P. Srinivas JUDGMENT (Delivered By R. Sudhakar, J.) This civil miscellaneous appeal is filed against the order dated 22.11.13, passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai, made in Final Order No.40596/2013. 2. The following substantial questions of law arise for consideration in this civil miscellaneous appeal :- i) Whether the Tribunal was right in dismissing the appeal filed by the assessee holding that the Commissioner (Appeals) has no powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of the appeal in the following manner, vide order dated 21.5.12 :- (i) The assessee had no case on merits ; (ii) There is no power to review/reconsider the order directing pre-deposit ; and (iii) The assessee had not complied with the direction of the Appellate Commissioner in his order dated 24.2.12 and, therefore, the appeal is liable to be rejected summarily for non-compliance. 5. Aggrieved by the above said order of the Appellate Commissioner, the assessee approached the Appellate Tribunal contending that - (i) The Appellate Commissioner ought to have reviewed the order of waiver of pre-deposit on prima facie case; (ii) The appeal ought not have been disposed of on merits when review application is pending ; and (iii) Rejection of the appeal for non-compliance is bad in view of the prima facie case was made out for waiver of pre-deposit. 6. The Tribunal addressed those issues held that the Commissioner (Appeals) ought not have recorded all analysis and conclusion on merits of the appeal and, therefore, to that extent, the order of the Commissioner (Appeals) is bad. However, insofar as the failure to pre-deposit is concerned, the Appellate Tribunal u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions. (1) The applications for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand; (2) Three aspects to be focused while dealing with the applications for dispensing of pre-deposit are : (a) prima facie case, (b) balance of convenience and (c) irreparable loss; (3) Interim orders ought not to be granted merely because a prima facie case has been shown; (4) The balance of convenience must be clearly in favour of making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the interest of public revenue; (5) While dealing with the applications twin requirements of consideration i.e., consideration of undue hardship and imposition of conditions to safeguard the interests of revenue have to be kept in view; (6) When the Tribunal decides to grant full or partial stay, it has to impose such conditions as may be necessary to safeguard the interests of the revenue. This is an imperative requirement; and (7) An appellate Tribunal, being a creature of the statute, cannot ignore the statutory guidance while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on an independent analysis of the applicable legal provisions and persisting in applying such interpretation though it be at variance with interpretations by the Supreme Court, the High Tribunal, as the case may be; and (d) An appeal to this Tribunal is maintainable against an order of the Commissioner (Appeals) dismissing an appeal for failure of pre-deposit. (e) In view of the decision of the Punjab and Haryana High Court in Surya Pharmaceutical Ltd. (supra), since an order of pre-deposit passed by the appellate Commissioner, in exercise of direction under Section 35F of the 1944 Act amounts to an order passed under the generality of the appellate jurisdiction under Section 35, an appeal lies to this Tribunal against such order as well, apart from an appeal against the final order dismissing an appeal for failure of pre-deposit; (f) While considering an appeal preferred against a final order passed, rejecting an appeal for failure of pre-deposit, the Tribunal is authorized to consider the correctness/appropriateness of an earlier order (of pre-deposit) passed by the appellate Commissioner, the non-compliance whereof resulted in dismissal of the appeal by that authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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