Adarsh Kumar Goel, J. - (1.) IN this petition, the petitioner seeks quashing of order dated 30 -5 -2008 (Annexure P -4) passed by the Commissioner of Customs and Central Excise (Appeals) exercising the powers of Appellate Authority under Section 35F of the Central Excise Act, 1944.
(2.) CASE of the petitioner is that show cause notice for levying of service tax was issued to the petitioner, which the petitioner contested. The adjudicating Authority raised a demand and also imposed penalty against which the petitioner filed an appeal along with an application for stay Respondent No. 3 without giving an opportunity of hearing to the petitioner rejected the application of stay and directed the respondents to deposit Rs. 2,50,000/ - as condition of pre -deposit towards penalty and full amount of service tax as a condition for hearing the appeal. We have heard learned Counsel for the parties and perused the records.
(3.) LEARNED Counsel for the petitioner submits that while deciding the stay application, Commissioner (Appeals) respondent No. 3 exercised powers of quasi judicial authority and was required to give an opportunity of hearing to the petitioner. In any case, the order must show application of mind with regard to the issue of prima facie case, balance of convenience and irreparable loss. Learned Counsel relies on, a judgment of this Court in Adinath Dyeing and Finishing Mills v. wherein it was observed: In these petitions we are not concerned with the merits of the controversy raised in the appeals. The short question is whether the Tribunal has exercised the discretion vested in it under the afore -mentioned proviso on sound legal principles considering all the relevant facts. True that at the time of consideration of application seeking waiving/stay. It is not desirable for the Tribunal to embark upon a detailed inquiry to find out whether the stand of the applicants is on terra firma yet it is imperative that before making any direction with regard to the pre -deposit, the Tribunal must take into consideration the relevant factors, normally, whether there is a prima facie case in favour of the assessees; the balance of convenience qua depositor or otherwise; irreparable loss, if any, likely to be caused in case the stay is not grafted and safeguarding the public interest. The order of the Tribunal must reflect its application of mind on these factors. We feel that in the present cases, there has been non -application of mind in respect of each of the cases individually, thus, vitiating the pre -deposit orders.;