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2021 (9) TMI 722 - HC - CustomsDismissal of stay application pending appeal - erroneous assumption that granting prayer in Miscellaneous Application pending Appeal, would amount to allowing the appeal itself - release of smuggled absolutely confiscated gold - error in not appreciating the difference between the appeal and miscellaneous application filed pending the appeal or not - HELD THAT:- The Tribunal, while considering the prayer for interim stay, has to consider as to whether the balance of convenience is in favour of the Revenue, whether the Revenue has made out a prima faice case for grant of stay and whether irreparable hardship would be caused to the Revenue if the stay is not granted. To consider as to whether prima faice case has been made out by the Revenue, it may be necessary to have a consideration of the facts of the case and the merits of the appeal though not to the extent of deciding the appeal itself. With regard to the balance of convenience, the Tribunal has to examine the aspect that if stay is not granted what would be the consequence that will follow and with regard to hardship, that would be caused by the Revenue has also to be considered. If the stay is not granted, then, the respondent would seek return of the seized gold and that has to be ordered, then the appeal filed before the Tribunal itself would become infructuous - undue hardship would also be viewed from the point of view of the Revenue and to protect the interest of the Revenue - the order passed by the first Appellate Authority dated 14.11.2019 shall remain stayed till the disposal of the appeal filed by the Revenue before the Tribunal. There will be an order of stay of the order passed by the first Appellate Authority dated 14.11.2019 till the disposal of the appeal by the Tribunal - Appeal allowed.
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