TMI Blog2016 (6) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Keeping in view the settled position of law on the point in issue and from the perusal of the appellate order passed by the appellate authority/appellate tribunal thereby passing the impugned orders, the said authorities have not indicated its mind so far as the existence of the prima facie case on merits on appeal as well as the financial condition which are to be considered by them (appellate authority/tribunal) while passing the impugned orders on an application for stay pending in the first appeal. The said mandatory condition is to be taken into consideration while disposing of an application for interim relief moved by the assessee by the appellate authority as well as tribunal during the pendency of appeal. For the foregoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x during the pendency of first appeal filed before the first appellate authority. In view of the above said factual background, the present revisions has been filed. I have heard learned counsel for the parties and gone through the records. A Division Bench of this Court in the case of I.T.C. Ltd. vs. Commissioner (Appeals), Custom Central Excise, Meerut-I 2005 (184) E.L.T. 347 (ALL.), (paragraph no.35) held as under:- In view of the above, the aforesaid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred by the legislature and refusal to exercise the discretionary power by the authority to stay/waive the pre-deposit condition would be reduced to nugatory/illusory. Undoubtedly, the interest of the Revenue cannot be jeopardized but that does not mean that in order to protect the interest of the Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before 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 Commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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