2012 (5) TMI 66 - HC - Central Excise

Court sets aside Commissioner and CESTAT orders, directs appeal decision without pre-deposit.

Fidelity Magnetics. Versus The Commissioner of Central Excise.

The Court set aside the orders of the Commissioner and CESTAT, directing the Commissioner of Central Excise (Appeals) to decide the appeal on merits ... Whether CESTAT can remand the matter back with direction to the appellant to first pre-deposit a part of the duty even though the Act does not provide for the same – Held that :- Appellant assessee engaged in the manufacture of recorded audio cassettes on job work basis – Show cause notice was issued to pay duty along with interest and penalty – CCE(A) directed the assessee to make the pre deposit as per Circular No.619/2002 – Tribunal following it decision in VIJAYATA AUDIO WORLD Versus COMMISSIONER OF C. EX., MUMBAI (2000 - TMI - 94916 - CEGAT, MUMBAI) granted full waiver of pre deposit – While disposing of the appeal tribunal neither considered the applicability of the Circular No.619/2002 nor the non-applicability of the order of the Tribunal in the case of Vijayata Audio World (supra) – Order passed by Commissioner(Appeals) and CESTAT was set aside – CCE(A) directed to dispose of appeal. Issues:1. Interpretation of Section 35C(1) of the Central Excise Act 1944 regarding CESTAT's power to remand a matter with a direction for pre-deposit.2. Applicability of Circular No. 619/2002 in directing pre-deposit by the Commissioner of Central Excise (Appeals).3. Consideration of waiver of pre-deposit granted by the Tribunal in previous cases.4. Justifiability of directing pre-deposit by the Tribunal in the absence of special circumstances.Analysis:Issue 1: The main issue in this case revolved around the interpretation of Section 35C(1) of the Central Excise Act 1944 concerning whether CESTAT has the authority to remand a matter with a direction for pre-deposit, even if the Act does not explicitly provide for it. The appellant argued that once the Tribunal allowed the waiver of pre-deposit and heard the matter on merits, it should not have directed the appellant to make a pre-deposit when setting aside the Commissioner's order and remanding the case.Issue 2: The Commissioner of Central Excise (Appeals) had initially directed the appellant to make a pre-deposit based on Circular No. 619/2002. However, the Tribunal, in a previous case, had granted a full waiver of pre-deposit. The Tribunal, in the present case, did not consider the applicability of the circular or the previous waiver granted. The appellant contended that since full waiver was granted previously, and no special circumstances existed, the Tribunal should not have ordered pre-deposit.Issue 3: The Tribunal, in a previous case, had granted a full waiver of pre-deposit, but in the present case, it directed the appellant to deposit 50% of the amount involved. The appellant argued that in the absence of special circumstances, the Tribunal should not have ordered pre-deposit, especially after granting full waiver previously.Issue 4: The Court, without delving into the question of whether the Tribunal has the power to direct pre-deposit under Section 35C(1), decided to set aside the orders of the Commissioner and the CESTAT. The Court directed the Commissioner of CESTAT (Appeals) to dispose of the appeal on merits without insisting on pre-deposit, considering the period in question and the circumstances of the case.In conclusion, the Court disposed of the appeal without awarding costs, keeping all contentions of both parties open for further consideration.