CIMMCO INTERNATIONAL Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) Issue rule. Mr. Sidharth Mridul accepts notice on behalf of respondent and agrees to disposal of the writ petition at this stage itself. Heard. The petition calls correctness of an order dated 28th June, 2005 whereby the petitioner has been directed to pay further sum of Rs. 4 lacs as pre -deposit in terms of Sec. 35F of the Central Excise Act. It is not in dispute that the order impugned before the Tribunal arisen out of a fresh order which the Commissioner of Central Excise has passed pursuant to remand order made by the Tribunal in which the Commissioner has once again held the view that the filing of the appeal before the Commissioner by the petitioner was barred by law. It is also common ground that while remitting back the matter to the Commissioner for a fresh hearing and disposal the Tribunal had secured pre -deposit of Rs. 4 lacs from the petitioner. The petitioner's grievance against the fresh order which the Tribunal has made demanding further pre -deposit of Rs. 4 lacs primarily is that the pre -deposit already made by it should suffice and that no further pre -deposit could be demanded in law. Reliance in support of that submission is placed by the petitioner upon a decision of Division Bench of this Court in Super Tyres Pvt. Ltd. v/s. Union of India, : 2005 (186) E.L.T. 49 (Del.). It is argued that on the authority of the said decision that once a pre -deposit is made before the Tribunal who finally remands the matter back to the Commissioner for a fresh hearing, any appeal preferred against any such fresh order passed by the Commissioner would not call for a further pre -deposit and that pre -deposit made before the Tribunal in the course of remand proceedings would suffice. Mr. Mridul counsel for the respondents submits that the preposition urged by the petitioner is not supported by the decision of this Court in Super Tyres' case. Be that as it may the question whether a further pre -deposit could be demanded in a case where the petitioner had already made a pre -deposit in the course of the remand round stands concluded by the decision of this Court. In the circumstances and following the view taken in Super Tyres' case the order passed by the Tribunal shall have to be satisfied. We accordingly allow this writ petition, quash the order made by the Tribunal and direct that the appeal filed by the petitioner shall be heard on merits without insistence on any further pre -deposit. The Tribunal shall endeavour to expedite the disposal of the appeal.