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Vide Dwarka Minerals & Chemicals (P.) Ltd. v. CCE(A) [1997] 93 ELT 330 (Punj. & Har.) where the appellate authority does not pass an appropriate order on the request made by the appellant for stay and at the same time does not even hear out the appeal, a writ court will be justified in concluding that the remedy of appeal was not effective.

The Gauhati High Court came to the rescue of the assessee in 256ITR698. A. K. PATNAIK J. then held that since the assessee has been conferred with the right of appeal along with the right to file an application for stay of demand appealed against before the Appellate Tribunal, until the application of the assessee for stay of the demand appealed against is considered by the Tribunal and the orders are passed by the Tribunal, the demand appealed against should be stayed. It further directed the AO to wait until 60 days for the assessee to exercise his right to file an appeal as well as an application for stay before Tribunal and further till such time the orders are passed by the Tribunal on stay matter and in case of adverse orders further to wait for 15 days time to enable the assessee to move any other higher forum.

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