V.K. Bist, J. -
(1.) Instant petition has been filed challenging the order dated 23.03.2012 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred as to the CESTAT). Further prayer has been made to issue a writ of mandamus directing the (CESTAT) to waive the condition of pre-deposit of duty and hear the appeal of the petitioner on the merits.
(2.) It is asserted in the petition that the petitioner is a Public Limited Company, based in Haridwar, Uttarakhand and is engaged in manufacture and sale of Flock Fabrics, falling under Central Excise Tariff Chapter Heading 59.07 and sub-Heading 5907.12 of the Central Excise Tariff Act, 1995. The unit of petitioner was established in the year 1989. Govt. of India, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion), New Delhi issued an Office Memorandum on 07.01.2003, which was the New Industrial Policy and other concessions for the State of Uttarakhand and Himachal Pradesh in which fiscal incentives were proposed to new units and to existing units on their substantial expansion. Consequent upon the new Policy dated 07.01.2003, the petitioner, who had earlier made some capital investments, ventured for making more capital investments in the plant in order to avail the benefit of fiscal incentives, as declared in the Industrial Policy by the Ministry of Commerce and Industry. The respondent no.1 issued a Notification on 10.06.2003 declaring that existing Industrial Units, as on 07.01.2003, who undertake substantial expansion by way of increase in installed capacity, by not less than twenty five percent, on or after 7th January, 2003, would be eligible to Central Excise exemption, for a period of ten years from the date of commencement of commercial production. The petitioner claimed exemption from payment of Central Excise Duty by filing declaration for a period of ten years as provided under the Notification dated 10.06.2003. All the plant and machineries purchased during the financial year 2002-03 were declared as capital work in progress. In order to cater to the increase in installed capacity of the plant, the petitioner applied to Uttarakhand Power Corporation Ltd. for enhancing its power load and after the power load was increased the petitioner deposited the security/system loading charges/service connection expenditure and the contracted load was released in November, 2003. Thereafter, the subordinates of respondent no.3, disputed whether the benefit of the Central Excise exemption would be application to the petitioner unit or not, alleging that the benefit of exemption would not apply to such units, which commence the expansion programme on or after 07.01.2003 and thereupon a show cause notice was issued to the petitioner to which the petitioner responded. The matter was adjudicated upon by the Commissioner, Meerut vide order dated 26.10.2006. It is asserted that the IIT, Roorkee has given a report that the process of coating, flock dosing, flock fabric drying and flock fabric brushing operations are performed in continuous operations and if capacity of any of these operations was not increased, the installed capacity of the plant could not be increased. It is stated in the petition that some clarifications were issued by Central Board of Excise and Customs (CBEC)/respondent no.1 on the terms substantial expansion, governing all area based exemptions. The petitioner contested the orders passed by the Commissioner by filing an appeal before CESTAT, New Delhi, who, while disposing of the appeal, remanded the matter to the Commissioner, Central excise, Meerut-1 for reconsideration. After the matter was remanded back, the respondent no.3 i.e. Commissioner, Central Excise, Meerut-1 again vide order dated 29.10.2010 confirmed the demand of notices to the tune of INR 4,40,72,632/- and penalty thereon of equal amount. The petitioner again filed an appeal before the CESTAT bearing appeal number E/593-594/2011 under Section 35B of the Central Excise Act, 1944 alongwith stay application under Section 35F of the Central Excise Act, 1944 (hereinafter referred as to the Act), however the CESTAT, while disposing the stay application of the petitioner, vide the impugned order dated 23.03.2012 directed the petitioner to deposit the full amount of demand i.e. INR 4,40,72,632/- covering the impugned period of dispute from 10.09.2003 to 08.07.2004 within a period of eight weeks and report compliance by 28.05.2012.
(3.) I have heard Mr. P.R. Mullick, Advocate for the petitioner, Mr. Shobhit Saharia, Senior Standing Counsel for the respondents and perused the record.;