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TMI Blog2014 (12) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35F of the Central Excise Act, 1944, as appellant had failed to make pre-deposit within the stipulated period in terms of the stay order passed by the Commissioner (Appeals). Tribunal vide its Final Order dt. 16.09.2013 dismissed the appeal against the Commissioner (Appeals)'s Order on the grounds that :- (i) The order dt.20.06.11 Of the Commissioner (Appeals) directing the pre-deposit of the adjudicated quantum of tax is not contended to be an order patently beyond the Jurisdiction of the Commissioner (Appeals) and hence a nullity, and; (ii) The ground of attack that Commissioner (Appeals) had erred in exercise of discretion and had exercised the discretion arbitrarily by directing any pre-deposit of tax, is not a valid groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posit under section 35F passed by the Commissioner (Appeals), if the Commissioner (Appeals)'s had dismissed the appeal for non compliance of the provisions of Section 35F without going into the merits of the case, that if the Commissioner (Appeals)'s Ordering pre-deposit is not correct, the Tribunal can modify the pre-deposit order passed by the CCE (Appeals) and can direct the Commissioner (Appeals) to decide the appeal on merits without insisting of, pre-deposit or on payment of a lesser amount on pre deposit, that Tribunal in the case of Girnar Transformers (P.) Ltd. (supra) has held that while disposing of an appeal against final order of the Commissioner (Appeals) dismissing the appeal for failure of pre-deposit, the Tribunal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority had exercised it discretion by directing pre-deposit of tax component by passing an order, a formal order having consequences has come into force and this order of the Lower Appellate Authority directing pre-deposit is not appealable and in absence of any right of appeal provided against such order of Lower Appellate Authority directing pre-deposit, no appeal could have been preferred before this Tribunal in any event, and if aggrieved by the order of Lower Adjudicating Authority directing pre-deposit, the assessee must seek remedy elsewhere other than before this Tribunal. However, the Tribunal in the case of Girnar Transformers (P.) Ltd. (supra), after considering the judgment of various High Courts and the Tribunal has taken a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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