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Judgment
V. Ramasubramanian, J.—The petitioner has come up with the present writ petition, challenging a conditional stay order passed by
Customs, Excise and Service Tax Appellate Tribunal.
Heard Mr. Joseph Prabakar, learned counsel appearing for the petitioner and Mr. K. Ramakrishna Reddy, learned Senior Central Government
Standing Counsel appearing for the respondents.
As against an Order-in-Original passed by the Assistant Commissioner of Central Excise, the petitioner filed an appeal in A. No. 38 of 2007.
But the same was dismissed by an Order-in-Appeal by the Commissioner (Appeals) dated 15-12-2008, confirming the demand of Rs. 99,264/-
u/s 11A of the Central Excise Act, 1944 and a demand of appropriate interest u/s 11B and a penalty of equivalent amount u/s 11AC.
As against the order of the Appellate Authority, the petitioner filed a further appeal before the Customs, Excise and Service Tax Appellate
Tribunal, along with petitions for stay and waiver. By an order dated 3-8-2009, the Tribunal directed the entire duty to be paid and waived the
pre-deposit of interest and penalty. Challenging the condition imposed by the Tribunal for payment of entire duty, the petitioner is before this
Court.
The short ground on which Mr. M. Joseph Prabakar, learned counsel for the petitioner assails the impugned order, is that the Tribunal did not
examine the prima facie case, balance of convenience and irreparable hardship, for deciding the waiver and stay petition. The said contention
appears to be fairly justified. It is seen from the impugned order that the Tribunal directed the payment of the entire duty only on the ground that the
amount involved is small in the sense that it is less than Rs. 1 lakh. But such a reasoning cannot be accepted. Irrespective of the quantum, the
Tribunal has to examine whether the appellant has a prima facie etc. In a case where the quantum of duty is huge, the Tribunal may find no prima
facie case to grant a stay. In a case where the quantum is very small, the Tribunal may find an open and shut case. In other words, the quantum
cannot be the sole criteria for deciding a stay petition.
Therefore the writ petition is allowed, the impugned order is set aside and the matter remitted back to the first respondent Tribunal for a fresh
consideration in accordance with law. No costs. Consequently connected miscellaneous petition is closed.