B. S. CHAUHAN, J. ( 1 ) THIS writ petition has been filed for quashing the order dated 8. 10. 2003 passed by the learned commissioner (Appeals), Customs and Central Excise, Meerut, rejecting the application of the petitioner for stay/waiver of pre-deposit of the amount demanded by the Assessing Authority during the pendency of the appeal, to the tune of Rs. 1,60,93,806 and in case the said amount is not deposited within 15 days of the receipt of the said order, the appeal would stand dismissed without further reference to the Appellate Authority. ( 2 ) FACTS and circumstances giving rise to this case are that petitioner was served with a show cause notice dated 25. 6. 1998 issued by the Assistant Commissioner, Central Excise, Saharanpur to show cause why the profit margin percentage as detailed therein be not increased to arrive at the assessable value of "slides and Inner Frames" used by the Company during the course of packing of cigarette sticks, for the assessment years 1986-87 to 1996-97. Petitioner filed the reply to the show cause notice on 22. 7. 1998 and 8. 10. 1998 submitting that the "slides and Inner frames" neither manufactured nor a marketable commodities and, thus, could not be subjected to levy of duty. More so, as the show cause notice was based on a notification dated 30. 10. 1996, it could not be given effect retrospectively. The adjudicating Officer vide order dated 26. 12. 2000, held that the profit margin would have to be worked out on the basis of the said circular dated 30th October, 1996 in respect of the price list for the period from 1. 7. 1988 to 31. 3. 1998. Being aggrieved and dissatisfied, petitioner preferred the appeal under Section 35 of the Central Excise act, 1944, hereinafter called the Act. Along with the appeal, an application for waiver of the pre-deposit condition was also filed on the ground that the petitioner was not liable to pay any duty at all as "slides and Inner Frames" were neither manufactured nor marketable and the petitioner had a fool proof case and was bound to succeed in appeal. The said application has been rejected vide impugned order dated 8. 10. The said application has been rejected vide impugned order dated 8. 10. 2003 holding that the petitioner-Company did not plead the issue of financial hardship nor it could plead so in view of the stature being an established company of India and there was no strong prima facie case could be made out for waiver. Hence this petition. ( 3 ) SHRI Shanti Bhushan, learned Senior Counsel appearing for the petitioner assisted by Shri yashwant Verma, Advocate, has submitted that if it is established before the Appellate Authority that the applicant has a very strong case on merit, the Appellate Authority is bound to examine the issue on merit prima facie. Financial hardship does not mean as to whether the appellant is in a position to make the payment or not but a prima facie case has to be examined as to whether the appellant is liable to make the payment at all and in case the appellant has a case on merit, the authority cannot reject the application. The petitioner-appellant has made an attempt to satisfy the Appellate Authority that the "slides and Inner Frames" were neither manufactured nor marketable and, thus, could not be subjected to duty at all and this issue was not considered at all by the Appellate Authority. More so, after introduction of Modvat system, the situation cannot be compared with the earlier period. The Appellate Authority and the Assessing Authority while deciding whether the "slides and Inner Frames" are manufactured and marketable, had placed reliance upon the judgment in inter se parties decided by the CEGAT, which had already been set aside by the Honble Apex Court in I. T. C. Ltd. v. Collector of Central Excise, Bombay, 2003 (85) ECC 17 (SC) : (2003) 1 SCC 634 , therefore, the Appellate Authority ought to have applied its mind to the issues raised by the appellant. Thus, petition deserves to be allowed. ( 4 ) ON the contrary, Shri Uma Kant, learned counsel appearing for the respondents has submitted that the writ petition against an interlocutory order should be not entertained generally. Thus, petition deserves to be allowed. ( 4 ) ON the contrary, Shri Uma Kant, learned counsel appearing for the respondents has submitted that the writ petition against an interlocutory order should be not entertained generally. Petitioner is a company of high stature and repute in the country and has a means to deposit the assessed amount to meet the pre-deposit condition of the appeal and, therefore, in case the petitioner-appellant succeeds before the Appellate Authority, the amount would be refunded with interest but no indulgence can be given by the writ Court at this juncture. Appeal is a creation of statute and legislature while conferring such a right has unlimited power to impose the condition for maintaining the appeal and so long the statutory provision is not held ultra vires or unconstitutional while examining its validity, the Court cannot interfere with the orders like instant. Petitioner may be having an arguable case but not such a strong prima facie case that it may warrant waiver for the reason that "slides sand Inner Frames" are manufactured and are also marketable in the Sense it has potentiality of being marketable to other companies, if so required by a party, Thus, it is not a fit case where the discretionary jurisdiction of a writ Court requires to be exercised and the petition is liable to be dismissed. ( 5 ) WE have considered the rival submissions made by the learned counsel for the parties and perused the record. ( 6 ) UNDOUBTEDLY, appeal is a creation of Statute and it cannot be created by acquiescence of the parties or by the order of the Court (Vide United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230 ; Kesar Singh and Ors. v. Sadhu, (1996) 7 SCC 711 . The finding of a Court or a tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. (Vide State of Gujarat v. Rajesh Kumar Dhiman Lal Barot and Anr. 1916) 5 SCC 477 ). ( 7 ) JURISDICTION cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a Court or Authority with jurisdiction, is a legislative function. In Union of India v. Devki Nandan Agrawal, AIR 1992 SC 96 , the Honble Apex Court observed that "the Court cannot usurp legislative functions. In Union of India v. Devki Nandan Agrawal, AIR 1992 SC 96 , the Honble Apex Court observed that "the Court cannot usurp legislative functions. The court cannot re-write the legislation for the reason that it had no power to legislate. The power of legislation has not been conferred on the Courts. " ( 8 ) IN Karnal Improvement Trust v. Prakashwanti, (1995) 5 SCC 159 , the Honble Supreme Court observed that acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation. A similar view has been taken in U. P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. , AIR 1996 SC 1373 . ( 9 ) IN Sardar Hasan Siddique v. State Transport Appellate Tribunal AIR 1986 All. 132 , the division Bench of this Court has observed that a Court or a Tribunal cannot derive jurisdiction apart from the Statute. No amount of acquiescence, waiver or the like can confer jurisdiction if a tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity. ( 10 ) SIMILARLY in A. R. Antuley v. R. S. Nayak, AIR 1988 SC 1531 , the Honble Supreme Court observed as under: "a decision touching the jurisdiction. . . . . . . . . . . . . . has to be not only consistent with the fundamental rights guaranteed by the Constitution, the same cannot even be inconsistent with substantive provisions of the statutory law. . . . . . . . . . . . The criteria of a right to an appeal is an act which requires legislative Authority neither an inferior Court nor the Superior Court nor both combine, can create such a right, it being one of the limitations and exception of jurisdiction. " ( 11 ) IN Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. , AIR 1999 SC 2213 , the honble Supreme Court held as under: "it has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigant being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. , AIR 1999 SC 2213 , the honble Supreme Court held as under: "it has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigant being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before an appeal can be maintained and no Court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable jurisdiction. " ( 12 ) IN view pf the above, it is evident that the appeal is a statutory right which can be created only by the legislature and it does not lie by acquiescence/consent of the parties or even the writ court is not competent to create the appellate forum if not provided under the Statute. ( 13 ) FURTHER, there can be no quarrel that right of appeal/revision cannot be absolute and the legislature can put conditions for maintaining the same. In Vijay Prakash D. Mehta and Jawahar d. Mehta v. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010 , the Honble Apex court held as under: "right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial or quasi-judicial adjudications. The aright to appeal is a statutory right and it can be circumscribed by the conditions in the grant. . . . . . . . . . The purpose of the Section is to act in terrorem to make the people comply with the provisions of law. " ( 14 ) SIMILAR view has been reiterated by the Honble Apex Court in Anant Mills Co. Ltd. v. State of Gujarat, AIR 1975 SC 1234 ; and Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. , AIR 1992 SC 2279 . " ( 14 ) SIMILAR view has been reiterated by the Honble Apex Court in Anant Mills Co. Ltd. v. State of Gujarat, AIR 1975 SC 1234 ; and Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. , AIR 1992 SC 2279 . In Shyam Kishore (supra) the Honble Supreme Court placed reliance upon its earlier judgment in Nandlal v. State of Haryana, AIR 1980 SC 2097 , wherein it has been held that right of appeal is a creature of statute and there is no reason why the legislature, while granting the right, cannot impost conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory", the Court cannot interfere. ( 15 ) IN Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad and ors. (1999) 4 SCC 468 , the Apex Court held that right of appeal though statutory, can be conditional/qualified and such a law cannot be held to be violative of Article 14 of the constitution. An appeal cannot be filed unless so provided under the statute and when a law authorizes filing of an appeal, it can impose conditions as well. ( 16 ) IN view of the above, it becomes evident that the appeal is a statutory creation and if legislature in its wisdom has imposed certain conditions, like pre-deposit for the purpose of hearing the appeal, the Courts cannot interfere as the Courts are supposed to have strict adherence to the statutory provisions. But the question does arise that if the Legislature has conferred the power to waive the condition of pre-deposit in a particular situation, whether the authority concerned is bound to examine as to whether the case of waiver is made out after examining those conditibns/issues. ( 17 ) THE issue involved herein is no more res Integra as it is being examined by the Courts everyday. ( 18 ) IN Income-tax Officer v. M. K. Mohammad Kunhi, AIR 1969 SC 430 , the Apex Court held that stay should be granted if a strong prima facie case has been made out and in the most deserving and appropriate cases where entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue, during the pendency of the appeal. ( 19 ) IN B. P. L. Sanyo Utilities and Appliances Ltd. v. Union of India, 1999 (64) ECC 202 (Kant): 1999 (108) ELT 621 , the Karnataka High Court held that in the matter of grant of waiver of pre-deposit, each case has to be examined on its own merit and no hard and fast rule can be formulated. ( 20 ) IN Andhra Civil Construction Co. v. CEGAT, 1992 (58) ELT 104, the Madras High Court has emphasised that unless a very strong prima facie case is made out, stay should not be granted. ( 21 ) IN Mehsana District Cooperative Milk P. U. Ltd. v. Union of India, 2003 (154) ELT 347 (SC), the Honble Supreme Court considered the case of dispensation of pre-deposit condition and held that the Appellate Authority must address to itself to the prima facie merits of the appellants case and upon being satisfied of the same, determine the quantum of deposit taking into consideration the financial hardship and other such related factors. ( 22 ) IN Luxco Electronics v. Union of India and Ors. 1987 (31) ELT 883 (All.), it has been held that if the plea of demand being time barred is raised before the Tribunal while considering the application for stay-cum-waiver, the issue should be considered by the Tribunal and it should be apparent from the order itself that the Tribunal had taken note of it. While deciding the said case, reliance had been placed upon the judgment of this Court in Hari Fertilizers Ltd. v. Union of india, 1989 (21) ECC 176 (All): 1985 (22) ELT 301 , wherein a similar view has been taken. ( 23 ) IN J. N. Chemicals Pvt. Ltd. v. CEGAT, 1991 (53) ELT 543 , the Calcutta High Court while considering the provisions of pre-deposit of duty and penalty, observed that where the authority concerned comes to the conclusion that the appellant has a good prima facie case so as to justify the dispensation of requirement of pre-deposit of the disputed amount on duty and penalty, the authority must exercise its discretion to dispense with such requirement, particularly in a case where the appellant satisfies the authority concerned that its case is squarely covered by the decision of a competent Court binding on it. In such an eventuality; asking the appellant to deposit the duty demanded and penalty levied would undoubtedly cause undue hardship to the appellant. While deciding the said case, Calcutta High Court placed reliance upon the judgment of the Honble Apex Court in L. Hirday Narain v. Income Tax Officer, Bareilly, 1971 SC 33, wherein the Court observed as under: "if a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moved in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute prima facie enabling, the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private -- of a citizen. " ( 24 ) THUS, even where enabling or discretionary power is conferred on a public authority, the words which are permissive in character, require to be constituted, involving a duty to exercise that power, if some legal right or entitlement is conferred or enjoyed, and for the effectuating the such right or entitlement, the exercise of such power is essential. The aforesaid view stands fortified in view of that fact that every power is coupled with a duty to act reasonably and the court/tribunal/authority has to proceed having strict adherence to the provisions of law. [vide julius v. Lord Bishop of Oxford, (1880) 5 Appeal Cases 214; Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 ; K. S. Srinivasan v. Union of India and Ors. , AIR 1958 sc 419 ; Yogeshwar jaiswal v. State Transport Appellate Tribunal, AIR 1985 SC 516 ; Ambica quarry Works etc. v. State of Gujarat and Ors. , AIR 1987 SC 1073 ]. , AIR 1958 sc 419 ; Yogeshwar jaiswal v. State Transport Appellate Tribunal, AIR 1985 SC 516 ; Ambica quarry Works etc. v. State of Gujarat and Ors. , AIR 1987 SC 1073 ]. ( 25 ) IN Delhi Administration v. Manohar Lal, (2002) 7 SCC 222 , the Honble Supreme Court held that power vested by Statute in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest and no authority including the appropriate government can be permitted to act in a routine course to exercise its powers at its sweet will, pleasure and whim or fancy, for the reason that if any authority is permitted to act as it wants to, it will reduce the legislative will to a mere dead letter at the whim of such an authority. ( 26 ) IN Bongaigaon Refinery and Petrochem Ltd. v. Collector of Central Excise (A), 1994 (46)ECC 87 (Cal) : 1994 (69) ELT 193 (Cal), the Calcutta High Court, while examining a similar issue and placed reliance upon a large number of judgments and held that the phrase "undue hardship" would cover a case where the appellant has a strong prima facie case. The phrase also covers a situation where there is an arguable case in the appeal. If the Appellate Authority forms the opinion that appellant has a strong prima facie case, it should dispense with the pre-deposit condition altogether. However, where it is of the opinion that the appellant has no arguable case, the Appellate Authority must safeguard the interest of the Revenue, as the same also cannot be jeopardized. ( 27 ) IN Sri Krishna v. Union of India, 1998 (104) ELT 305, Delhi High Court considered the issue of dispensation of pre-deposit condition and the concept of undue hardship while considering the provisions of Section 129-E of the Customs Act, 1962 and Section 35 of the Act and held that the Court while considering the case of the appellant should examine as to whether the Appellate authority or Tribunal have dealt with the plea raised by the appellant before it and have considered as to whether the appellant has a prima facie case on merit. In case the appellant has a strong prima facie case, as is most likely to exonerate him from liability and the Appellate authority/tribunal insists on the deposit of the amount, it would amount to undue hardship. ( 28 ) IN Hoogly Mills Co. Ltd. v. Union of India, 1999 (108) ELT 637 , the Calcutta High Court again reiterated the view that if the appellant has a strong prima facie case, he is entitled of waiving the pre-deposit condition and in case the Appellate Authority insists to deposit the amount so assessed or penalty so levied, it will cause undue hardship to the assessee. While considering the said case, the Court placed reliance upon the large number of judgments including Tata Iron and Steel Co. Ltd. v. Commissioner (Appeals), Central Excise, 1998 (98) ELT 350 ; Hari Fertilizer v. Union of India, 1985 (22) ELT 301 (All.) Re. American Refrigeration Co. Ltd. , 1986 (23) ELT 74 ; and V. I. T. Sea Foods v. Collector of Customs, 1989 (42) ELT 220 (Ker.), wherein the Courts had expressed the similar view. ( 29 ) IN I. T. C. Ltd. v. Commissioner of Central Excise and Customs (Appeals) and Ors. ILR 2000 kar. 25, while examining the issue of predeposit under Section 35 of the Act, after considering a large number of judgments of the Apex Court and various High Courts, it was held as under: "while considering the case of undue hardship, the authority is required to examine the prima facie on merits of the dispute as well. Pleading of financial disability would not be the only consideration. Where the case is fully covered in favour of the assessee by a biding precedent like that of the judgment of the Supreme Court, jurisdictional High Court or a Special bench of the Tribunal, then to still insist upon the deposit of duty and penalty levied would certainly cause undue hardship to the assessee. Absence of the financial hardship in such a case would be no ground to decline the dispensation of pre-deposit under the proviso to Section 35f. The power to dispense with such deposit is conferred under the authorities has to be exercised precisely in cases like this type and if it is not exercised under such circumstances then this Court will require it to be exercised. The power to dispense with such deposit is conferred under the authorities has to be exercised precisely in cases like this type and if it is not exercised under such circumstances then this Court will require it to be exercised. Such like cases where two views are not possible then the condition of pre-deposit before the appeal is heard on merits, can be dispensed with. In case two views are possible on interpretation, based on conflicting judgments of the Tribunal or different High courts in the absence of the judgment of the jurisdictional. High Court then the authorities may pass the order under proviso to Section 35f of the Act keeping in view the facts of the case in hand. " ( 30 ) IN Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad, 1995 (50) ECC 57 (SC) : (1995) 3 SCC 23 . The Honble Supreme Court after placing reliance upon a large number of its earlier judgments, held as under: "the duty of excise being on production and manufacture which means bringing out a new commodity, it is implicit that such goods must be usable, movable, salable and marketable. The duty is on manufacture or production but the production or manufacture is carried on for taking such goods to the market for sale. The obvious rationale for levying excise duty linking it with production or manufacture is that the goods so produced must be a distinct commodity known as such in common parlance or to the commercial community for purposes of buying and selling. " ( 31 ) WHILE deciding the said case, the Honble Apex Court placed reliance upon its earlier judgment in Indian Cable Co. Ltd. v. Collector, Central Excise, Calcutta, 1994 (48) ECC 121 (SC) : 1994 (74) ELT 22 , wherein it was held that the provisions of the Act mandate that a finding that the goods are marketable is a prerequisite or "sine quo non" for the levy of duty. Ltd. v. Collector, Central Excise, Calcutta, 1994 (48) ECC 121 (SC) : 1994 (74) ELT 22 , wherein it was held that the provisions of the Act mandate that a finding that the goods are marketable is a prerequisite or "sine quo non" for the levy of duty. ( 32 ) IN Collector of Central Excise, Baroda v. United Phosphorus Ltd. , 2000 (69) ECC 255 (SC) : (2000) 4 SCC 18 , wherein the Honble Apex Court has re-examined the same issue in great detail and after placing reliance upon a large number of judgments held as under: "it is well settled by a series of pronouncements of this Court from Bhor Industries Ltd. v. Collector of Central Excise, 1989 (21) ECC 1 (SC) : 1989 (40) ELT 280 (SO to Union of India v. Delhi Cloth Mills Co. Ltd. 1997 (92) ELT 315 (SC) that excise is a duty on goods as specified in the Schedule. The taxable event in the case of excise duty is the manufacture of goods. In order to excisable goods (i) there must be goods (ii) having come into existence as a result of manufacturer, and (iii) to be goods, the article must be known to the market as such and as would ordinarily come to the market for being bought and sold. Actual sale of the article is not required but it must be capable of being bought and sold. Intermediate produces even if captively consumed may be liable to levy of excise duty if they satisfy the test of being goods on the touchstone of marketability. . . . . . . . . . . . . . . Onus to establish that an article is "good" and marketable is on the department. " ( 33 ) HOWEVER, in Siliguri Municipality and Ors. v. Amlendu Das and Ors. AIR 1984 SC 653 , the honble Apex Court has observed as under: "we are constrained to make the observations which follows as we do feel dismayed at the tendency on the part of some of the High Courts to grant interlocutory orders for the mere asking. Normally, the High Courts should not as a rule in proceedings under Article 226 of the constitution grant any stay of recovery of tax save under very exceptional circumstances. The grant of stay in such matters should be an exception and not a rule. Normally, the High Courts should not as a rule in proceedings under Article 226 of the constitution grant any stay of recovery of tax save under very exceptional circumstances. The grant of stay in such matters should be an exception and not a rule. It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the ratepayers in case they ultimately succeed at the conclusion of the proceedings. This object can-be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues. . . . . . . . . . . . . . " ( 34 ) SIMILAR view has been reiterated in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. and Ors. , 1985 (4) ECC 103 (SC): AIR 1985 SC 330 ; State of Madhya pradesh v. M. V. Vyavsaya Co. , AIR 1997 SC 993 ; Upadhyay and Co. v. State of U. P. and Ors. , (1999) 1 SCC 81 , deprecating the tendency of the Courts granting stay of recovery by mere filing of the case as it exposes the "impairment of the public interest. " ( 35 ) IN view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case it is covered by the judgment of a Court/tribunal binding upon the Appellate authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. In case it is covered by the judgment of a Court/tribunal binding upon the Appellate authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain on the appellant running in a good financial condition. The arguments that appellant is in a position to deposit or if he succeeds in appeal, he will be entitled to get the refund, are not the considerations for deciding the application. The order of the appellate Authority itself must show that it had applied its mind to the issue raised by the appellant and it has been considered in accordance with the law. The expression "undue hardship" has a wider connotation as it takes within its ambit the case where the assessee is asked to deposit the amount even if he is likely to exonerate from the total liability on disposal of his appeal. Dispensation of deposit should also be allowed where two view are possible. While considering the application for interim relief, the Court must examine all pros and cons involved in the case and further examine that in case recovery is not stayed, the right of appeal conferred by the legislature and refusal to exercise the discretionary power by the authority to stay/waive the pre-deposit condition, would be reduced to nugatory/illusory. Undoubtedly, the interest of the Revenue cannot be jeopardized but that does not mean that in order to protect the interest of the Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer. ( 36 ) IN view of the above, we are of the considered opinion that as the Appellate Authority has not addressed to itself any of the issues involved in the appeal rather has gone to the issue of financial hardship which was unwarranted and uncalled for in the fact situation of this case. The order impugned cannot be sustained in the eyes of law and we have no option but to allow this petition and set aside the order impugned. ( 37 ) THUS, the petition succeeds and is allowed. The order impugned dated 8. 10. 2003 is hereby set aside. The case is remanded to the Appellate Authority to decide the application for stay/waiver afresh in accordance with law, as explained above. The Appellate Authority is requested to decide the application expeditiously preferably within a period of two weeks from the date of filing of the certified copy of this order before it, which petitioner is directed to file within a period of one week from today. If possible, the Appellate Authority may decide the appeal itself within the aforesaid time. ( 38 ) TILL the application for stay/waiver is decided, no recovery shall be made from the petitioner in pursuance of the order of assessment dated 26. 12. 2000 or any consequential order passed in pursuance thereof. .