N.C.Jain, J.

1 This judgment of ours would dispose of Civil Writ Petition Nos. 1299, 8131, 9092 and 9148 of 1994 as common question of law has arisen in these petitions. Before noticing the question of law, it is necessary to have a brief look on the factual side. The counsel for the parties are agreed that the facts of the case be picked up from Civil Writ Petition No. 1299 of 1994, Emerald International Limited v. State of Punjab, etc. We would accordingly be taking into consideration the factual position as emerging from the aforementioned case only but it is necessary to observe at this stage that in one case, i.e., Civil Writ Petition No. 8131 of 1994, S.A.R. Springs Industries v. State of Haryana the provisions of Section 39(5) of the Haryana General Sales Tax Act (hereinafter referred to as "the Haryana Act") would also be noticed as this case arises out of the orders passed by the authorities under the Haryana Act.

2 The facts of the aforementioned case as they emerged from the orders of the Assessing Authority, Deputy Excise and Taxation Commissioner (hereinafter called "the appellate authority") and the Tribunal are that the sales tax including penalty and interest (hereinafter referred to as "the tax amount") to the tune of Rs. 24,80,464 was imposed upon the petitioner by the Assessing Authority vide annexure P3. The order, annexure P3, was appealed against before the appellate authority. Along with the appeal an application under Section 20(5) of the Punjab General Sales Tax Act, 1948 (for short, "the Punjab Act") was filed for entertaining the appeal without prior payment of tax amount on the ground that the petitioner was unable to pay the same. The appellate authority, Patiala, by his order dated June 17, 1993 directed the petitioner to deposit a sum of Rs. 10,00,000 (rupees ten lacs) before August 9, 1993 failing which the appeal was to be dismissed as not maintainable. The order of the appellate authority was subjected to a further challenge in appeal before the Tribunal under Section 20(2) of the Punjab Act. The Tribunal upheld the order of the appellate authority, Patiala. The orders of the authorities below have been challenged by the petitioner in writ petition both on merits and on points of law.

3 When the matter came up for hearing before the division Bench, the counsel appearing for the assessees in various writ petitions advanced two-fold arguments. The vires of Section 20(5) of the Punjab Act and also the provisions of Section 39(5) of the Haryana Act were challenged in the first instance. Secondly, it was argued that the appellate authority while hearing the stay matter should see the prima facie merit in the appeal and the prima facie case should be a relevant consideration for granting stay. It was argued that prima facie case could not be gone into on account of the decision of this Court in Food Corporation of India v. Sales Tax Tribunal [1989] 73 STC 241. The attention of the division Bench was invited to a single Bench authority--Kisan Workers Transport Co-operative Society Ltd. v. Assessing Authority 1982 UTR 345 in which it was held that in the matter of exercise of discretion regarding grant of stay, the appellate or the revisional authority should not treat such a thing as merely a routine matter and should find out amongst other things whether the impugned tax was prima facie legal or not. The division Bench upheld the vires of the Punjab Act and the Haryana Act. However, the learned Judges while referring the matter to the Full Bench had directed the appellate authority to dispose of the appeal in accordance with law. The relevant reference order incorporating the arguments and the observations of the division Bench reads as under :

"During the hearing of the petition, our attention was invited to Kisan Workers Transport Co-operative Society Ltd. v. Assessing Authority 1982 UTR 345 in which a learned single Judge held that in the matter of exercise of discretion demanding deposit