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TMI Blog2014 (2) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of ITC Limited Vs. Commissioner (Appeals) 2005 ELT 347 (para 35), the complete dispensation of deposit of the amount should be allowed if the appellant-applicant has strong prima facie case and where two views are possible even if the appellant-applicant is running in good financial position? (II) Whether none of three clauses of Section 25 (1) of Act, 2008 is applicable in the present case hence the assessing authority had no jurisdiction to make a provisional assessment order and the provisional assessment order having been passed only on account of seizure of the goods on 27.8.2013 on the technical ground of column no. 6 of Form-38 of the consignment being not filled and there being no material available on record with the assessing authority to show or establish that the applicant is suppressing the turnover of sale or purchase, hence in view of the law laid down by this Court in ITC Limited (supra) and in the case of Honda Siel Cards Ltd. Reported in 2010 UPTC 1152, the Tribunal was not justified in directing the applicant to deposit 20 % of the disputed amount of tax by completely overlooking the law laid down by this Court. (III) Whether as per Section 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled for stay of 100 per cent against demand of disputed amount and the appellate authorities below have committed error in not granting complete stay, as sought for by Revisionist. 6. All other Revisions, i.e., Trade Tax Revision No. 142 of 2014, Trade Tax Revision No. 143 of 2014 and Trade Tax Revision No. 144 of 2014, involve same facts, except the difference that they pertain to difference months, i.e. August' 2013, September' 2013 and October' 2013 respectively, but the questions of law and basic facts are common and, therefore, this Court is considering factual details only in the context of Trade Tax Revision No. 141 of 2014 for the purpose of adjudicating the questions of law raised and argued. 7. Sri Bharat Ji Agarwal, learned Senior Advocate, appearing for Revisionist, contended that no prima facie case was made out so as to authorize Assessing Authority to make a provisional assessment order under Section 25 (1) of Act, 2008 and, therefore, entire proceedings culminating in the order of assessment, appealed before the First Appellate Authority was patently illegal and looking to this aspect of the matter, appellate authorities must have allowed stay application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but denied any lapse on its part stating that Form-38 is filled in by Consignor and not the Consignee, hence, he (the Assessee) cannot be penalized for the lapse on the part of Consignor. He also said that Column-6 of Form-38 was left blank due to oversight. The goods were transported against GR 75072/TFBD27C/561 dated 19.8.2013 which had invoice number, date, item, quantity, weight, value and vehicle number. Transaction was duly recorded in regular books of accounts, hence no adverse inference was liable to be drawn against Assessee. The argument that notice is founded on possibility and suspicion which would not justify penalty or provisional assessment under Section 25 (1) of Act, 2008, and the case for provisional assessment would not fall in either of Clauses of Section 25 (1), hence, no provisional assessment was justified, has been considered by Assessing Authority in the order dated 9.12.2013 wherein it has stressed upon importance and relevance of Form-38, Column-6 and has said:- English Translation by the Court: "Column 6 of Form-38 is a very important column, which correlates goods to other documents like bill/invoice etc. Its original copy, immediately after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly without jurisdiction. In any case, this is a issue which was before Assessing Authority and having been considered by it, now has to be considered by Appellate Authority where the Revisionist's appeal is pending. Apparently, it cannot be said that Assessing Authority lacked patent jurisdiction or there is no prima facie case whatsoever. It is true that while passing order on the stay application of Assessee, both the Appellate Authorities have not stated in so many words about prima facie case etc. but a combined reading of all the orders, aforesaid, leads to no otherwise inference but what has been discussed and stated above. The merits of entire case, as such, is not to be discussed by the appellate authority at the stage when it has to consider the stay application as that would otherwise prejudice the interest of either of parties, but the only thing which Appellate Authority must show that it has applied its mind in considering the matter in accordance with law. The Tribunal has already granted indulgence to Assessee by staying requirement of deposit of disputed amount to the extent of 80 per cent and in the facts of this case, I do not find any patent error therein. 13. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riness. It cannot be exercised whimsically and on conjectures and surmises. Before granting stay order, the general principles in such matters must be applied. A prima facie case, balance of convenience and if necessary, even the concept of irreparable loss can be looked into in such matter. For example, if the amount required to be deposited is phenomenally higher and Assessing Authority finds that apparently from the very bare reading of order appealed, it does appear that such amount is not justified or ultimately may not stand, it may exercise power of stay conferred under Sub-section (6). Similarly, one of the consideration is capacity of Assessee vis-a-vis demand raised by Assessing Authority in the order appealed. No thumb rule can be applied to such matters, but one thing is clear that when we say that a prima facie case has to be looked into by Assessing Authority, it does not mean that it has to go to the extent of saying that it must find out and hold that Revenue has no case at all, despite the fact that an order is existing in its favour, which has been appealed by other side. A prima facie case means the grounds taken by the appellant, if considered ex-parte, there ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exist and must be shown by appellant, failing which, as a matter of right, it cannot be claimed that 100 per cent stay order must be passed. Any other view would nullify the scope of judicious discretion to be exercised by Appellate Authority while granting stay in exercise of power under Section 55 (6) of Act, 2008. Learned counsel for revisionist, however, has failed to satisfy this Court also that Assessee must have been granted 100 per cent stay. 17. So far as question no. 1 formulated in para 40 of memo of revision is concerned, it is nothing but reiteration of observations made by Division Bench of this Court in ITC Limited Vs. Commissioner (Appeals) (supra), and, therefore, it cannot be said that this question has arisen in this matter, since it is nothing but what has been held therein, but I do not find that it applies to the case in hand, since at this stage it cannot be said that two views are not possible or there is strong prima facie case in favour of Assessee-Revisionist so much so that Revenue has no case at all or that there is no prima facie case in favour of Revenue. The Question No. 1, therefore, is answered against Assessee. 18. Similarly, Questions No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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