ORDER
Shri S. L. Peeran
1. This stay application and appeal are taken up together for disposal as the issue lies in a short compass. The Commissioner (Appeals) has dismissed the appeal solely on the ground that his Interim stay order directing the appellants to pre deposit the entire duty amount of Rs.31,39,929/- has not been complied with. In the Interim order, he has noted the submissions made by the appellants that they have made some profits during the preceding financial year; that they have not produced any evidence to show that they have suffered huge financial loss. Therefore, he directed the appellants to pre deposit the entire amount on this ground alone without going into prima facie merits of the case.
2. Ld. Consultant submits that the Commissioner (Appeals) was also required to have taken into consideration the prima facie merits of the case and balance of convenience in their favour. He points out that they had imported medical equipments and cleared on executing bond which is still in existence in terms of Notification No.64/88 dated 1.3.88. They are making efforts with the Ministry of Family Welfare. He submits that DGHS has now recommended for issue of certificate after re-consideration of their case. Therefore, they have a clear chance of succeeding in the matter. He further submits that the appellants being a diagnostic service are not able to make huge profits to pay the entire amounts and it will result in closure of the unit. He seeks for total waiver.
3. Ld. D.R. Opposes the prayer and points out that in terms of Notification, they are required to have produced the Certificate from the concerned authority. The matter could not be kept pending endlessly. The bond was executed in 1988 and the show cause notice was issued in 1996. He submits that even after issue of show cause notice, the appellants have not produced the certificate. Therefore, the submission that the provisional assessment will not lead to confirmation of demand is not correct. The department has waited for the appellant for over a decade and it cannot be kept pending for ever. He submits that they are now required to pay the entire duty in view certificate not having been produced by the appellants. He seeks for dismissal of the stay application.
4. On a careful consideration of the submission, we are agreeable with the submission of Ld. DR that the bond cannot be kept pending for ever. In the present case, the matter had been kept pending for over a decade. Even after issue of show cause notice, the appellants have not produced the concerned certificate for 4 years. Now at this stage, Ld. Consultant submits that after a prolonged correspondence, the State Govt. has recommended for issue of Certificate and they are likely to get the same. Although there is no proof produced with regard to this submission, we are now required to see as to whether they should be directed to pre deposit the entire amount. The appellant is a Diagnostic Service Centre. Although they might have made marginal profit, but the prima facie nature of the case is also required to be taken into consideration besides balance of convenience. Taking the overall facts and circumstances and as the Commissioner has also not decided the case on merits, therefore we direct the appellants to pre deposit Rs.10,00,000/- (Rupees Ten lakhs only) within a period of three months from the date of receipt of this order. On such deposit, the balance of duty stands waived and recovery stayed.
5. As the Commissioner (Appeals) has not decided the matter on merits, we would deem it proper that the matter be remanded to the Commissioner (Appeals) for hearing the appellants on merits after appellants have pre deposited the amounts and producing the proof of compliance before him after expiry of three months. Thus the appeal is allowed by way of remand with the above directions. Ordered accordingly.
(Pronounced & dictated in open court)