2010 (3) TMI 411

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....[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 i.e. to deposit an amount of Rs. 4 cores. ....

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....e 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 follows : "35G. Appeal to High Court (1) An appe....

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.... 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 Tribunal is an order made in appeal and if the answer is in t....