TMI Blog2011 (3) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... pects, the Commissioner (Appeals) directed the above pre-deposit to be made by the assessee. Accordingly, an amount of Rs.40 lakhs was required to be deposited before 17.4.2009 & also made clear therein that, in the absence of evidence of pre-deposit, the appeal would be dismissed ex-parte. Thus enough material found in support of the prima facie view taken by the Commissioner (Appeals) - allow these appeals by way of remand with a direction to the appellant to pre-deposit Rs.40 lakhs within four weeks from today. - C/942 & 783/09, C/S/1509 & 1307/09 - - - Dated:- 4-3-2011 - Shri P.G. Chacko, Shri Sahab Singh, JJ. Appearance: Shri Abhijeet A. Desai Advocate for Appellants Shri P.K. Agarwal Jt. CDR for Respondent Per: P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants, the learned advocate Shri Prakash Shah, as amicus curie, mentions that there are judgments of the Hon'ble Supreme Court to the effect that such appeals are maintainable. Fairly enough, the learned Jt. CDR himself has produced copies of two judgments of the Hon'ble Supreme Court, one of which is in the case of Commissioner Vs. Smithkline Beecham Co. Health Co. Ltd. - 2003 (157) ELT 497 (SC) and the other in the case of Collector of C. Ex., Calcutta Vs. Alnoori Tobacco Products - 2004 (170) ELT 135 (SC). 4. A Civil Appeal filed by the Commissioner of Central Excise, Chandigarh in the case of Smithkline Beecham Co. Health Co. Ltd. was against an order passed by this Tribunal against the Revenue on merits in an appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appealable to this Tribunal and that, in such an appeal, the Tribunal has to examine the propriety of the appellate Commissioner's decision. The apex court's judgments cited by amicus curie and produced by the learned Jt. CDR are enough for us to overrule the preliminary objection raised by the learned Jt. CDR. It is ordered accordingly. 5. As already indicated, Appeal No. C/942/09 is delayed by 41 days. In the relevant application, the appellants state that they had filed one appeal (C/783/09) against the order of the Commissioner (Appeals) and thought that a separate appeal might not be necessary against the same order. It is further stated that Appeal No. C/942/09 was filed as soon as they were advised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of the assessee reading thus: - "We request you, in the meanwhile to stay the recovery proceedings for the duty initiated by the Assistant Commissioner of Customs, CFS, Pimpri, Pune, till the appeal is decided." Nothing else was averred or requested by the assessee in the stay application before the Commissioner (Appeals). Nevertheless, the learned Commissioner (Appeals) examined the various aspects of the matter including undue hardships though there was no plea of hardships in the stay application. The appellate authority referred to relevant decisions of the Hon'ble Supreme Court and this Tribunal on the factors to be considered under Section 129E of the Customs Act and Section 35F of the Central Excise Act for wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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