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2014 (8) TMI 611 - HC - Central ExciseJurisdiction of Commissioner - Power to review - Whether the Commissioner (Appeals) has the power to review his own order of pre-deposit - Held that:- such a power is available to the Tribunal under Section 35-C (2) of the Act to rectify any mistake apparent on the record. Therefore, we find that the Tribunal was justified in rejecting the plea of the appellant that the Commissioner (Appeals) ought to have reviewed the order. When there is no power under the statute, the Commissioner (Appeals) has no authority to entertain the application for review of the order. Tribunal has clearly held that in an appeal against the final order of the Appellate Commissioner (dismissing the appeal for failure to pre-deposit), the Tribunal will not adjudicate upon the merits of the appeal, but if the order of pre-deposit passed by the Commissioner (Appeals) in the given facts and circumstances of the case is erroneous, the Tribunal is required to set aside the order of the Appellate Authority and remand the matter to the Appellate Commissioner for de novo consideration after passing an appropriate order as to pre-deposit. We find that this exercise has not been done by the Tribunal in the present case and it has summarily upheld that the rejection of the appeal for failure or pre-deposit is impeccable and, therefore, we have no hesitation to hold that the Tribunal should have considered the pre-deposit issue perforce and to that extent the order has been rightly put to test by the appellant before this Court - Matter remitted back - Decided in favour of assessee.
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