JUDGMENT G. B. PATNAIK J. - This application is directed against the conditional order of stay passed by the Commissioner of Sales Tax on 1st February, 1989 in respect of the assessment made for the quarters ending June, 1984, September, 1984 and for the assessment years 1985-86 and 1987-88. 2. After amendment of the Orissa Sales Tax Act and introduction of section 5(2)(AA) and further amendment made to the said Act by defining "works contract" in section 2(jj), the assessing officer issued notice to the petitioner No. 1 to produce the books of accounts and other documents and ultimately made assessment in respect of the petitioner's transactions for the period already mentioned making a demand of Rs. 28 lakhs. The assessee assailed the validity of the orders of assessment in two writ petitions, viz., O.J.C. No. 3582 of 1986 and O.J.C. No. 3583 of 1986, inter alia, contending that the transactions in question were not liable for levy of sales tax. This Court while disposing of a batch of writ applications where leviability of sales tax on works contract had been challenged also disposed of the said two writ applications filed by the assessee and setting aside the orders of assessment, remanded the matters to the assessing officer for reassessment in accordance with the observations made in the judgment. During the pendency of the assessee's earlier writ applications, pursuant to interim order of this Court, the assessee had deposited a sum of Rs. 22,60,886. After remand, the assessee again produced all the books of accounts and documents and also produced materials before the assessing officer in support of the stand that several items of machinery had been manufactured at Jamshedpur and certain other items were brought from places outside Orissa and had been sent from Jamshedpur and other places to opposite parties 5 and 6 at Rourkela and Angul respectively under the contract in question and, therefore, the property in the goods passed to opposite parties 5 and 6 outside the State of Orissa and hence Orissa sales tax could not be levied on the said transactions. The assessing officer who had on the earlier occasion construed the contract to be indivisible, after remand held the same to be a divisible one and thereafter applying the different rates of tax leviable on different items of transactions, made an assessment to the tune of Rs. 1,18,43,151. The assessing officer who had on the earlier occasion construed the contract to be indivisible, after remand held the same to be a divisible one and thereafter applying the different rates of tax leviable on different items of transactions, made an assessment to the tune of Rs. 1,18,43,151. As the assessee had paid Rs. 22,60,886, while the earlier writ applications were pending in this Court, the assessing officer made a further demand of Rs. 95,82,265. Essentially, therefore, the self-same transactions of the petitioner for the self-same period which had been assessed to sales tax to the tune of Rs. 28 lakhs, after remand, have now been assessed to Rs. 1,18,43,151. Against the order of reassessment, the assessee moved the Assistant Commissioner of Sales Tax in appeal and during the pendency of the appeal moved the said Assistant Commissioner for stay. The Assistant Commissioner did not grant any stay and rejected the same though observing that the merit of the case would be decided in the appeal. The assessee therefore moved the Commissioner of Sales Tax in revision against the said refusal of stay made by the Assistant Commissioner. The learned Commissioner of Sales Tax by the impugned order dated 1st February, 1989 did not grant full stay but granted a conditional stay with the stipulation that if the assessee would pay Rs. 70 lakhs in two equal instalments, i.e., on 20th February, 1989 and 10th March, 1989, then the balance demand would remain stayed till disposal of the first appeal and on failure to pay the amount as directed, the stay order would be deemed to be vacated. The assessee has thereafter approached this Court against the aforesaid conditional order of stay. 3. Though several grounds had been taken in the writ application with regard to the legality of the order of assessment, yet while arguing, Dr. Pal appearing for the petitioners made submissions only with regard to the propriety and legality of the conditional order of stay granted by the Commissioner. According to Dr. Pal, the Commissioner while considering the question of stay has not applied his judicial mind to the order of the assessing officer which is the subject-matter of appeal to find out the prima facie case of the assessee and has also not considered the question of balance of convenience and has mechanically passed the conditional order of stay. According to Dr. According to Dr. Pal, the fact that the very transactions which were the subject-matter of assessment earlier and on which levy of Rs. 28 lakhs had been made towards Orissa sales tax and Orissa additional sales tax, have now, after remand and on reassessment, become liable to tax of Rs. 1,18,43,151 itself would show how arbitrarily the assessment has been made by the assessing officer. Dr. Pal also points out the perversity of the order of assessment to the effect, that notwithstanding sufficient materials being produced by the assessee indicating the manufacture of goods at Jamshedpur and several inter-State transactions taking place with opposite parties 5 and 6 occasioning movement of goods from one State to another, the assessing officer without due application of mind and without appreciating the legal position, illegally took those transactions as a part of the works contract of the assessee and has levied tax on the same, as a result of which there has been an arbitrary inflation of the levy. According to Dr. Pal, this is a fit case where the assessee is entitled to grant of full stay. 4. The learned Standing Counsel for the Sales Tax Department, vehemently objects to any interference with the order of conditional stay passed by the Commissioner of Sales Tax and contends that since an appeal is pending before the appellate authority, this Court will not be justified in examining the various contentions of the petitioner with regard to the legality of the order of assessment. The learned Standing Counsel also urges that this Court is not entitled to find out the prima facie merit of the assessee's contentions in appeal while considering the legality of the order of stay passed by the Commissioner of Sales Tax and produces before us a few orders of the Honourable Supreme Court where the Supreme Court had refused to interfere with the orders passed by this Court. On examination of those orders, we find that in those cases, the assessee had moved this Court against an order of assessment made after remand and this Court had declined to entertain the same on the ground of availability of an alternative remedy of an appeal under the statute. When those orders were assailed in the Supreme Court, the Supreme Court did not interfere with the same and upheld the orders of this Court. When those orders were assailed in the Supreme Court, the Supreme Court did not interfere with the same and upheld the orders of this Court. We fail to understand how those orders are of any assistance or would be a guide for us while considering the legality and propriety of the conditional order of stay passed by the Commissioner of Sales Tax. 5. As has been stated earlier, Dr. Pal appearing for the petitioners, has limited his prayer only with regard to the conditional order of stay passed by the Commissioner and not with regard to the legality of the order of assessment made by the assessing officer since the appeal against the same is pending before the Assistant Commissioner. We are unable to accept the contention of the learned Standing Counsel that while considering the legality and propriety of a conditional order of stay passed by the Commissioner, this Court would not be required to examine prima facie, the contentions of the assessee with regard to the validity of the order of assessment. Certainly no finding can be given in that respect in view of the pendency of the appeal before the Assistant Commissioner, but while examining the question of stay, this Court can, and in our view, must consider the prima facie nature of the case, the balance of convenience, the loss and injury to be suffered by either party if stay is granted in one case and if the stay is refused in the other, and all other germane matters. Instances are not rare where notwithstanding the existence of an alternative remedy under a statute in a taxation matter, the High Courts have entertained writ applications directly against an order of assessment if the courts came to the opinion that the taxing authority acted without jurisdiction and by use of coercive method collected the tax in question. But in the present case, we are not faced with the aforesaid problem, since the assessee has already moved in appeal against the order of assessment and what is being challenged in the present writ application is the legality and propriety of the order of conditional stay passed by the Commissioner. But in the present case, we are not faced with the aforesaid problem, since the assessee has already moved in appeal against the order of assessment and what is being challenged in the present writ application is the legality and propriety of the order of conditional stay passed by the Commissioner. While examining a writ application by an assessee against a conditional order of stay passed by the Commissioner of Sales Tax, this Court is entitled to consider whether the Commissioner has applied his mind to the records of the case and has passed the order after considering all the relevant materials or has arbitrarily and mechanically passed the order in question, and in order to ascertain the same this Court would be entitled to examine the prima facie nature of the case and the contentions of the petitioner with regard to the validity of the order of assessment as to whether there is some substance in the same prima facie or not. 6. During the last one month this Court has interfered with several orders of conditional stay passed by the Commissioner of Sales Tax and has directed the assessee to pay different sums of money depending upon the facts and circumstances of each case while appeal by the assessee is pending before the appellate authority. In the premises, as aforesaid, and taking into consideration the facts of the present case where the original demand of Rs. 28 lakhs has been enhanced to Rs. 1,18,43,151 for the period in question, the prima facie nature of the case and the contention of the learned counsel for the petitioners on that score, the balance of convenience, and also the fact that the financial year has already come to an end and the appeal can be directed to be disposed of early and further taking into account the fact that the assessee has already paid Rs. 22,60,886 during the pendency of the assessee's earlier writ applications in this Court for the self-same period, we modify the order of the Commissioner dated 1st February, 1989, annexed as annexure-15, and direct that the assessee-petitioner shall deposit a further sum of Rs. 30,00,000 (thirty lakhs) by 29th April, 1989, and on such deposit being made, the balance demand shall remain stayed till the petitioner's appeal is disposed of by the first appellate authority. In the event the amount of Rs. 30,00,000 (thirty lakhs) by 29th April, 1989, and on such deposit being made, the balance demand shall remain stayed till the petitioner's appeal is disposed of by the first appellate authority. In the event the amount of Rs. 30 lakhs as directed is not paid by 29th April, 1989, then the order of stay shall stand vacated without any further reference to the Bench. This writ application is accordingly disposed of with the aforesaid direction, but there will be no order as to costs. J. DAS, J. - I agree. Writ application disposed of accordingly.