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Judgment
Kalyan Jyoti Sengupta, C.J.—We have heard the learned counsel for the appellant and we admit the appeal on the following suggested question of law:
Whether the learned Tribunal was justified in recording the finding on merits while dealing with an application for dispensation of pre-deposit?
Learned counsel for the Revenue takes notice for the respondent. We have decided to hear out the appeal today itself as a copy of the appeal papers are served upon the learned counsel for the Revenue.
We are of the view that the learned Tribunal in exceptional cases can assess the prima facie case treating the same to be a hardship for maintaining the appeal by dispensation of pre-deposit. But, here, the learned Tribunal while doing so observed adversely on merit of the case. To put it differently, the Tribunal cannot do it in a negative way. Therefore, the finding of the learned Tribunal, the portion of which starts with the words "the issue is covered by the precedent Tribunal''s decision in the case of 2012 (193) ECR 66 against the assessee", is expunged and deleted. We clarify that this aspect can be decided by the learned Commissioner of Appeals at the time of hearing of the appeal. The learned Commissioner shall decide the matter independently, without being influenced by the observations made in this order. We also make it clear that this order will be effective only if the petitioner makes payment of 50% of the demanded amount as directed by the learned Tribunal within 15 days from today, failing which, this order shall stand recalled and the impugned order of the learned Tribunal shall stand revived.
The appeal is accordingly disposed of. The miscellaneous petition shall also stand dismissed.