Pre-deposit non-compliance in excise appeal led to remand for merits after substantial deposit was already made.

Dismissal of an excise appeal solely for non-compliance with the pre-deposit requirement under section 35F was set aside where the appellant had already made a substantial deposit and the merits had not been examined by the first appellate authority. The Tribunal considered that the dispute required fresh determination on merits and remanded the matter to the Commissioner (Appeals) for that purpose, leaving the substantive tax liability open for reconsideration.

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Issues: Whether the order dismissing the appeal for non-compliance with the pre-deposit requirement under section 35F of the Central Excise Act, 1944 could be set aside and the matter remanded for decision on merits.

Analysis: The appellant had already deposited a substantial part of the duty demand. The appeal before the Commissioner (Appeals) had been dismissed only for non-compliance with the pre-deposit condition and the merits of the dispute were not adjudicated. In these circumstances, and in view of the Tribunal's prima facie view on the nature of the appellant's activity, the matter required fresh consideration on merits by the first appellate authority.

Conclusion: The dismissal order was set aside and the appeal was remanded to the Commissioner (Appeals) for decision on merits.

Final Conclusion: The appellant obtained relief by way of remand, and the substantive tax liability was left open for fresh adjudication.

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