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2010 (10) TMI 57 - MADRAS HIGH COURTRemand - 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 - Held that: - Tribunal has committed an error in remanding the matter to the Commissioner of Central Excise (Appeals) to decide the matter afresh. When an appeal has been filed on merits, challenging the decision made by the Commissioner of Central Excise (Appeals), the same has to be decided on merits. Admittedly the appeal has been preferred by the department against the order which ends in favour of the assessee. Such an order cannot be set aside on extraneous grounds than on merits, especially when no plea has been taken on the ground of maintainability. the proviso to Section 35-F of the Act, gives ample power to the Commissioner of Central Excise and to the Appellate Tribunal to waive the pre-deposit. When such a power is given enabling an applicant to prefer appeal to the Tribunal, nothing prevents the Tribunal from excising such power in favour of the assessee concerned, more so, when he is armed with an order passed by the Commissioner of Central Excise (Appeals).
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