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2014 (5) TMI 383 - HC - Central ExciseMaintainability of appeal - waiver of pre-deposit - issue of valuation involved - decision of third member of the tribunal - determination of the retail sale price in the absence of retail sale price being declared on the package prior to 1st March, 2008 - Held that:- Prior to the decision of the third member, there was a decision of the Tribunal which supported the appellant's contention before the Tribunal. That decision was brought to the notice of the learned third member before passing the order. The third member was bound to consider the judgment of the Tribunal. He, however, did not do so. We would have had no hesitation therefore in setting aside the order of the third member and remanding the matter to him for passing a fresh order. Respondent has however, raised a question of maintainability of this appeal under Section 35(G) of the Central Excise Act,1944. The respondent contends that this appeal relates to valuation. According to the respondent, therefore, the appeal would be maintainable only before the Supreme Court under Section 35(L) of the Act. In view thereof, we are not inclined at this stage to dispose of the appeal on this ground. - appeal is accordingly admitted, but subject to the point of maintainability. There shall be adinterim order in terms of prayer clause (b). However, the statement on behalf of the appellant that the tax has been paid and will be continued to be paid with effect from April 2008 is accepted and it is so ordered. - appeal admitted - stay granted.
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