FIDELITY MAGNETICS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal was admitted on 14 -3 -2012 on the following question of law. Whether in terms of Section , CESTAT can remand the matter back with direction to the appellant to first pre -deposit a part of the duty even though the Act does not provide for the same? The appellant -assessee is engaged in the manufacture of recorded audio cassettes on job work basis for various music companies.

(2.) BY a show cause notice dated 30 -9 -1999 the assessee was called upon to show cause as to why the clearances effected during the period from 1 -3 -1997 to 1 -6 -1998 should not be held to be under valued and duty amounting to Rs. 17,89,015/ - should not be recovered with interest and penalty. The assessee opposed the claim in the show cause notice. However, by order in original dated 8 -3 -2002 the duty demand was confirmed with interest and penalty.

(3.) CHALLENGING the aforesaid order the assessee filed further appeal before the CESTAT with an application seeking waiver of pre -deposit. By an order dated 18 -3 -2004, the Tribunal by following its decision in the case of Vijayata Audio World and Ors. dated 22 -9 -2000 [ : 2001 (127) E.L.T. 204 (Tribunal)] waived the pre -deposit. Subsequently, the Tribunal by the impugned order dated 1 -3 -2011 set aside the order of Commissioner (Appeals) and restored the matter to the file of Commissioner (Appeals) with a direction to pass fresh order on merits as the issue was highly debatable and highly arguable. However, the Tribunal further directed that the order of the Tribunal in restoring the appeal before the Commissioner (Appeals) shall be subject to the condition that the assessee shall deposit 50% of the amount involved within the time stipulated therein. Challenging the aforesaid order the present appeal is filed.