D.N. Panda, Member (J) - (1.) LD . Counsel Shri Hemant Bajaj submits that this Appellant has been thrown at the threshold by the ld. Commissioner (Appeals) when pre -deposit could not be made by the Appellant. The Appellant being aggrieved by the stay order passed on 18 -9 -08 filed a modification application. That was also rejected on the ground that the stay application was not showing new grounds. He submits that the demand relates to the period from 26 -2 -05 to 31 -3 -07. Service Tax of Rs. 10,49,799/ - was demanded in adjudication holding that the Appellant was not entitled to pay Service Tax through Cenvat Account. He submits that such a modality is permissible in terms of the Tribunal's order in the case of Bhushan Power & Steel Ltd. v. CCE reported in : 2008 (10) S.T.R. 18 and CCE v. Nahar Industrial Enterprises ltd. reported in : 2007 (7) S.T.R. 26.
(2.) LD . DR submits that the Appellant is not entitled to discharge tax liability through Cenvat Account. Ld. Commissioner (Appeals) has not decided the issue on merit. He appreciated the law that right of appeal is conditional and failure to make pre -deposit deprives an Appellant from decision on appeal. We do appreciate that right of appeal is conditional. But prima facie appreciation of the case is essential when an appeal undergoes redressal in two stages. The first stage is stay hearing and second stage is the appeal hearing. This we say, following the ratio laid down by Apex Court's judgment in the case of Alex Enterprises v. Union of India reported in : 2009 (236) E.L.T. 10 (S.C.). The Appellate Authority below did not appreciate case of the Appellant when decisions cited by the ld. Counsel today, were available before him for an advantageous reading. We do not propose the Appellant to suffer when they have a cause and citation of the aforesaid case call for consideration. A good cause cannot be turned down if the Appellant has cause.
(3.) IN view of our observations aforesaid. We direct the Appellant to appear before the ld. Commissioner (Appeals) on 5 -5 -2009 and file an application for hearing of the stay application afresh in the light of aforesaid two decisions cited today. If the appellant appears before ld. Commissioner (Appeals) he shall hear or fix a date of hearing for which the Appellant shall take notice. The matter calls for hearing afresh taking all legal points involved in the matter and law applicable. Upon hearing the Appellant, the ld. Commissioner (Appeals) shall pass appropriate order on the stay application. We do not restrict powers of ld. Commissioner (Appeals) by any means. He is at liberty to dispense with pre -deposit if he considers proper.;