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Judgment
Having heard Mr. Shah, learned counsel appearing for the Appellant/Assessee and Mr. Jetly, learned counsel appearing for the Respondent/Revenue and perusing the order passed by the Customs, Excise and Service Tax Appellate Tribunal dated 3-10-2012 and prior order dated 7-6-2012, we are of the opinion that the appeal does not raise any substantial question of law. The application for stay has been considered by the CESTAT by taking into account the relevant and germane factors. It has found that a prima facie case has been made out, but not to this extent as would enable the appellant to seek waiver of pre-deposit of the entire amount. Further to balance the equities the direction has been issued. However, the complaint made by Mr. Shah that the CESTAT failed to take into consideration the fact that a sum of Rs. 38,30,000/- was paid by the appellant during the course of investigation, has some merit. The CESTAT ought to have considered that the demand of differential duty of Rs. 65,53,233/- in respect of 48 bills of entry and further differential duty demand in respect of two other bills of entry, is thus secured at least substantially. In our view, therefore, the appeal need not be kept pending and the order of the CESTAT can be modified with a direction that the appellant need not deposit anything over and above the amount already paid to the Department, but to secure the balance sum the appellant shall furnish a bank guarantee of any nationalized bank and which bank guarantee shall be of Rs. 29 lacs. Mr. Shah submits that the bank guarantee shall be furnished within a period of eight weeks from the date of receipt of a copy of this order. The statement accepted.
Barring the above modification nothing needs to be done in the subject Appeal. We clarify that the observations and findings of the CESTAT shall be treated as prima facie and tentative and shall not bind the CESTAT at the time of final decision of the appeal. All contentions are kept open. The appeal is, accordingly, disposed of. No costs.