- (1.) BY way of present petition under Articles 14, 19(1)(g), 265, 300(A) and 226 of the Constitution of India, the petitioners have made following prayers: "12(A) That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, striking down classification code no. 22029030 from Col. (2) against Sr. No. 12 of Notification No. 2/2011 -CE; (B) That Your Lordships may be pleased to issue a writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, holding and declaring that Amul Kool/Amul Kool Cafe was "milk" most appropriately classifiable under Chapter 4, Sub Heading No. 04029990 of the Tariff; (C) That Your Lordships may be pleased to issue a Writ of Prohibition or any other appropriate writ, direction or order, completely and permanently prohibiting the respondents, their servants and agents from taking any action against the petitioner on the basis that Amul Kool/Amul Kool Cafe was "beverages containing milk" and be further pleased to prohibit the respondents, their servants and agents from levying and collecting excise duties on Amul Kool/Amul Kool Cafe at the rates applicable to goods falling under SH No. 22029030; (D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the respondents, their servants and agents from levying and collecting excise duties from the petitioners on Amul Kool/Amul Kool Cafe at the rates applicable to goods falling under SH No. 22029030; and be further pleased to direct the respondents, their servants and agents to permit the petitioners to clear these goods at nil rate of duty under Chapter 4 of the Tariff; (E) An ex parte ad interim relief in terms of Para 12 D above may kindly be granted; (F) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted."
(2.) SUBSEQUENT to the notice issued by this Court, the respondents have filed their affidavitinreply.
(3.) THE question involved in the present case is the applicability of the provisions of Central Excise Tariff (Amendment) Act, 2004 and The applicability of either Chapter 4 or Chapter 22 of the said Excise Tariff Act 2004 with regard to the Rules produced by the petitioners. Learned advocate Mr. P.M.DAve appearing for the petitioners has taken us through the material produced along with petition in support of his case including the order dated 1/8/2007 passed by the Division Bench of this Court in Special Civil Application No. 19101 of 2007 having similar question involved at that time with regard to the petitioner itself. By the said application, the Division Bench has directed the Central Government to decide the representation made by the petitioner with regard to his case. The representation made by the petitioner was accepted by the authority and the notification was issued by the Ministry of Finance (Department of Revenue) Government of India vide notification No. 17/2008CE (NT) dated 27.03.2008.;