TMI Blog2010 (4) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... ring both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, we take up the appeal. 2. In adjudication of 3 show-cause notices, the original authority had, by an Order dated 21-9-99, disallowed certain credits taken by the assessee. Pursuant to that order, the assessee reversed total credit of Rs. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the dispute, the original authority, by Order dated 31-7-08, held against the assessee and imposed on them a penalty of Rs. 5,000/-. In an appeal filed against the said Order, the Commissioner (A) held against the appellant (assessee). Hence the present appeal and the stay application. 3. After a perusal of the records, we find that the lower appellate authority had not passed any order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in BDH Industries Ltd. v. Commissioner of Central Excise (Appeals), Mumbai-I [2008 (229) E.L.T. 364 (Tribunal-LB) = 2008 (87) RLT 566 (CESTAT-LB)] wherein, it was held that there was no provision under Central Excise Act and Rules allowing suo motu taking of credit or refund without sanction by the proper officer. 4. We are of the view that the substantive issue ought not to have been exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter setting aside the impugned order, we direct the ld. Commissioner (A) to dispose of the assessee s appeal afresh on merits after properly completing the preliminary proceedings under Sec. 35F of the Act. It goes without saying that there should be a speaking order on the stay application filed under Sec. 35F in the first instance and, subject to result of that application, their appeal should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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