2010 (3) TMI 411

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....Mishra, A.S.G., for the Respondent. [Judgment per : S.A. Bobde, J. (Oral)]. - Heard. 2. Rule. Returnable forthwith. Heard finally by consent of parties. 3. The petitioner has challenged the order passed by the Appellate Tribunal [2009 (247) E.L.T. 551 (Tri. - Mumbai)] under Section 35F of the Central Excise Act, 1944 directing the petitioner to deposit about half of the amount of the duty....

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....Court from every order passed in appeal by the Appellate Tribunal under Section 35G, the order directing the appellant to make a deposit of the duty demanded is not an order passed in appeal because such an order operates as a pre-condition before preferring of appeal and, therefore, it cannot be said that it is an order made in appeal. Section 35G(1) of the Central Excise Act, 1944 reads as follo....

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....e authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided..........." Now considering aforesaid two provisions the question arises as to whether the order directing a party to deposit the amount before the Appellate Tr....