T. Anjaneyulu, Member (J) - (1.)THIS is an application under Section 35 of the Central Excise Act, 1944 for waiver of pre-deposit amount and to order stay of its recovery, as confirmed by the Adjudicating Authority vide impugned Order-in-Original dated 28.04.2004 in remand proceedings under Order No. C-II/2982-83/WZB/2003 dated 28.11.2003 by this Tribunal in appeal No. E/1460/03-Mum arising out of Order-in-Appeal dated 03.03.2003.
(2.)The Petitioners are a company engaged in production and clearance of various finished excisable goods, falling under Chapters 27 to 38 of the First Schedule of the Central Excise Tariff Act, 1985. One of the finished excisable goods, produced by the petitioners, as a By-product, is a Mixture of number of Organic and Inorganic Chemicals, also containing Sodium Petroleum Sulphonate and being a Mixture of number of chemicals. The Petitioners classified the same under the sub-heading 3823.00 of the First Schedule to the said Tariff Act, prior to 01.03.1997 and thereafter sub-heading 3824.90 and the Classification Lists were filed from time to time and the goods were cleared on payment of Central Excise duty as applicable to the goods of the said sub-heading, read with the provisions of the Small Scale General Exemption Notification 175/86-CE dated 01.03.1986.
The Department had drawn samples of the said product and the same were forwarded to the Chemical Examiner and the Chemical Examiner, vide his Report dated 23.01.1992, opined that the product is a Surface Active Agent and accordingly, the concerned Excise Authorities issued 14 different Show Cause Notices from time to time on the ground that differential duty is payable as the said goods are not classifiable under the sub-heading 3823.00/3824.00, but correctly classifiable under the sub-heading 3402.90 of the First Schedule to the said Tariff Act.

(3.)THE Adjudicating Authority confirmed the total demand of Rs. 9,76,851/- under Section 11-A of the Central Excise Act, 1944 and imposed penalty of Rs. 1,00,000/- under Section 173-Q(1). THE Commissioner (Appeals) confirmed the Order-in-Original. THEreafter, the Petitioners approached this Tribunal. This Tribunal, vide its final Order dated 28.11.2003, allowed the appeal of the Petitioners by way of remand with the observations that the Test Report of the Chemical Examiner is cryptic and vague and therefore cannot be sustained and hence, the classification of the goods in question arrived at by the authorities below on the basis of the said Test Report is required to be re-examined and accordingly, the Adjudicating Authority was directed to re-test the goods in question and thereafter pass a Speaking Order under the principles of natural justice.