TMI Blog2000 (1) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed question whether the said credit was actually utilised on 9-1-1997, the learned counsel submitted that the credit was not actually utilised on 9-1-1997. It is the case of the adjudicating authority that there is no question of any fraud, suppression of fact or mala fide intention on the part of the petitioner. It is in view of the these facts, we are examining the matter. We depreciate the method adopted by the assessee in this case as he has not co-operated with the adjudicating authority. 3.It is the grievance of the petitioner that he preferred an appeal against the order as well as the stay application which came to be disposed of vide Annexure-B on 4-1-1999 and that while rejecting the stay application, a mechanical order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty be dispensed with unconditionally or subject to the conditions." It is required to be noted that the appellate authority is required to decide the application in accordance with law. The appellate authority has to consider the relevant facts, namely, the prima facie case of the appellant and the conduct of the parties. The Apex Court in the case of Vijay Prakash D. Mehta v. Collector of Customs (Preventive), Bombay reported in 1989 (39) E.L.T. 178 (S.C.) = AIR 1988 SC 2010 has held as under : "Thus while refusing to entertain appeal unless certain amount is deposited where the Appellate Tribunal considered the relevant factors the probability of the prime facie case of the appellant and the conduct of the parties it could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were filed in this court. The Division Bench pointed out as to how the authority has to pass orders. In the instant case, usual orders have been passed by the appellate authority, namely, Commissioner (Appeals), and there is non-application of mind and therefore, in our opinion the order rejecting the application for stay of pre-deposit; it has been thus vitiated and that order must be held to be bad. 5.As a result of such orders, if the appeals are dismissed such appeals are dismissed, such appeals must be restored. Therefore, we direct the Commissioner (Appeals) to hear the matters afresh and to pass speaking orders in the matters, namely on the stay applications within four weeks from the receipt of this order. 6.It is to be noted i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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