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TMI Blog2015 (3) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... hese revisions were heard together and are being decided by this common judgment. The applicant was assessed for different periods under Section 25 (1) (3) of the U.P. VAT Act, 2008 by the assessing authority by means of separate orders dated 31.3.2014/4.3.2014, whereby, demand for payment of tax was raised against the applicant. Aggrieved by the said order, the applicant filed First Appeal before the Additional Commissioner (Appeals) Commercial Tax Grade II, Range-4, Lucknow. Alongwith the memo of appeal, the applicant also filed application for grant of stay during the pendency of appeal. The first appellate authority, by separate orders dated 4.7.2014/6.8.2014, stayed recovery of 60% of the disputed tax liability on payment of security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the U.P. VAT Act, 2008. It is further contended that in certain cases, after the change of the policy of the Company during the post April, 2011 period, the Set Top Box were not being sold to the consumer but there was only entrustment, which after the determination of the license, is to be taken back by the Company. It is contended that there was no transfer of goods and as such, it does not attract any tax under the U.P. VAT Act, 2008. It is further pointed out that the applicant has already paid service tax on the aforesaid transactions, as according to the applicant, it was a service being provided by it to the consumer. In this regard, reliance has been placed on the judgment of this Court in the case of Sun Direct T.V. Pvt. Ltd. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacture." In Kribhco Shyam Fertilizers Ltd. Vs. The Commissioner of Commercial Taxes, Lucknow 2009 NTN (Vol. 40) - 67 this Court while dealing with the prima facie merits of the case under U.P. Tax on Entry of Goods in the Local Area Act, 2007 where the Tribunal had granted interim stay only to the extent of 80% of disputed tax, granted full stay as there was clear evidence to establish that disputed tax was not to be charged or paid. In the said case the Tribunal had granted stay to the extent of 80% and the balance of 20% was stayed by this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that in case the submission made by the applicant is to be accepted, namely, that the impugned orders are non speaking orders, then the entire order passed by both the authorities are liable to be set aside. On such submission being made by learned counsel for the Revenue, Sri Bharat B. Raichandani, learned counsel for the applicant, after taking specific instructions from his client, accepted the proposal that both the orders, namely, the order passed by the first appellate authority deciding the stay application and the order passed by the Tribunal, may be set aside and the first appellate authority may be directed to decide the stay application afresh in the light of the law laid down by the Supreme Court in relation to the course t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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