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TMI Blog2015 (10) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant argued that Commissioner(Appeals) vide Stay Order No.284/KOL-I/08 dated 13.11.2008 directed the appellant to predeposit 50% of the entire demand confirmed and penalty imposed. That appellant vide letter dated 23.11.1999 informed their inability to comply with the Stay Order. That for non-compliance of Stay Order first appellate authority has rejected their appeal. That this Bench vide order dated 10.07.2012 ordered pre-deposit of 50% of duty demanded. That a Misc. application for modification of stay/recalling of earlier order was also rejected by this Bench under order No.M-604/KOL/2012 dated 05.11.2012. That appellant filed a writ petition in Calcutta High Court and Hon'ble High Court vide Order dated 31.01.2013 [2015 (315 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked for a deposit. 4. Heard both sides and perused the case records. Hon'ble High Court vide order dated 31.01.2013 in WP No.8 of 2013 filed by the appellant made following observations:- 3. The aforesaid application for recalling of the ex parte order dated 10th July, 2012 referred to above has been dismissed on the purported ground that the learned Tribunal had no power to modify its own orders. The time for compliance of the order dated 10th July, 2012 was, however extended by four weeks from the date of receipt of the said order. 4. The decision of the learned Tribunal holding that the modification of the order was not permissible in law, is misconceived. An order directing pre-deposit is an interim order and is liable to be varied a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case records that first appellate authority has not decided the case on merits regarding classification of the goods manufactured and exported by the appellant on payment of duty. Department also accepted the payment of duty and also sanctioned rebate claims on the goods which now are proposed to be chargeable to NIL rate of duty. In the interest of justice Order dated 18.12.2009, passed by the first appellate authority is set aside and the case is remanded to the first appellate authority to first decide the issue of classification of impugned goods on merits without insisting for any pre-deposit. Needless to say that appellant should be given an opportunity of personal hearing before deciding the issue in remand proceedings on merits. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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