2010 (10) TMI 57

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....ls) for fresh adjudication, by raising the following substantial questions of law : "1. Whether the Tribunal is justified in remanding the matter on the ground that the Commissioner of Central Excise (Appeals) was not correct in passing the final order in the appeal on merits without mentioning about the waiver of pre-deposit of amounts under Section 35-F of the Act? 2. Whether the Tribunal is right in remanding the matter directing the first appellate authority to pass orders in terms of Section 35-F of the Act, when the first appellate authority passed orders on merits relying on the decision of the Hon'ble Supreme Court? 3. Whether the Tribunal is empowered to remit the matter to the lower authority except on t....

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....d on merits by relying upon the judgments rendered by the Tribunal on earlier occasions. 4. Challenging the same, the department preferred a further appeal to the Tribunal and the Tribunal has set aside the order of the Commissioner of Central (Excise) Appeals and remitted the matter back for re-consideration on the ground that the appeal made before the Commissioner of Central Excise (Appeals) is not maintainable being in violation of Section 35-F of the Central Excise Act, 1944, as there was no pre-deposit made by the assessee. Challenging the same, the assesse has filed the present appeal. 5. It is not in dispute that the assessee filed an application seeking to waive the pre-deposit. It is also not in dispute that the ....

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.... may dispense with such deposit. In view of the fact that the department has not chosen to contest the application filed for pre-deposit, the Commissioner of Central Excise (Appeals) has proceeded to decide the matter on merits. Even wile deciding the appeal on merits, the department has not chosen to contest the same. Thereafter, the appeal was filed before the Tribunal challenging the order on merits. Therefore, the above said facts would indicate that it is not open to the department to contend before the Tribunal for the fist time during the arguments that inasmuch as the question of pre-deposit having not been considered by the Commissioner of Central Excise (Appeals), the appeal before the said authority was not maintainable on merits....