B.P.Jeevan Reddy, C.J. - (1.) This writ petition is directed against an interlocutory order passed by the Customs, Excise Gold (Control) Appellate Tribunal (CEGAT), New Delhi on 24-12-1990. The petitioner filed an appeal against the order of the Collector, Central Excise, made under Section 11A of the Central Excises and Salt Act, 1944, and applied for stay pending appeal. Under a very elaborate order and after giving due reasons, the Tribunal expressed the opinion that it is not a fit case where stay should be granted in full. It noticed that the petitioner had not pleaded any financial hardship either. Having regard to the facts and circumstances of the case, the Tribunal directed the petitioner to deposit 75% of the duty and granted stay for the remaining 25%. It also granted stay of penalty in the sum of Rs. 1,00,000/-. In this writ petition, it is contended that the Tribunal was in error in not granting the full stay as asked for.
(2.) Ordinarily, this Court does not interfere with interlocutory orders passed by CEGAT. The Counsel for the petitioner, however, contended that there has been a grave procedural irregularity, which must induce this Court to grant the stay. He pointed out that on an earlier occasion, the Tribunal had remanded the matter to Collector (Appeals) for further inquiry on the question whether the petitioner is entitled to exemption from excise duty in terms of Notification No. 179/77, dated 18-6-1977 and that without passing orders in pursuance of the said remand order, the Collector and not the Collector (Appeals) - has passed an order under Section 11 A. (Notification No. 179/77 provides an exemption where the goods are manufactured without use of power). The grievance of the petitioner is that without determining the said question in proceedings pursuant to remand, an independent order was passed by the Collector, Central Excise, under Section 11A.
(3.) With a view to clarify the factual situation, we have heard learned Counsel for the petitioner and also learned Chief Standing Counsel for Central Government at same length and looked into records. We are of the opinion that the contention urged by learned Counsel for the petitioner is unsustainable and has been advanced without a full and proper appreciation of the relevant facts. As we shall presently demonstrate, the proceedings, which went to CEGAT earlier, and which resulted in an order of remand dated 1/12-7-1990, are totally different and distinct from the present proceedings. We shall first refer to the proceedings, which led to the order of remand dated 1/12-7-1990, and which are still pending before the Collector (Appeals). They relate to classification. They were not proceedings under Section 11 A. Those classification proceedings began by a notice dated 9-7-1981 issued by the Superintendent, Central Excise, Range-II, Naini, Allahabad, calling upon the petitioner to apply for L-4 licence in respect of Dant Manjan Lal manufactured by the petitioner since, according to him, it was liable to excise duty under Tariff Item 68 of the Schedule to the Act then in force. The petitioner opposed the same. According to the petitioner, it is not a cosmetic, but a drug and being a drug, it is exempt from duty. This plea was rejected by the Assistant Collector by his order dated 25-8-1981, who held that the said product was dutiable under Tariff Item 68. The petitioner filed an appeal against the order of the Assistant Collector before the Collector (Appeals). This appeal was allowed on 27-4-1983 and the matter was remanded for a de novo inquiry. At this stage, the petitioner raised an alternate contention that, in any event, its product is entitled to exemption under Notification No. 179/77, dated 18-6-1977 inasmuch as no power is used in its manufacture. By his order dated 20-2-1986, the Collector rejected the petitioner's contention and classified the product under Tariff Item 68. The plea of exemption was also rejected. Against this order, the petitioner had filed a writ petition, which was allowed and the matter remanded for fresh decision. In pursuance of these orders, the Assistant Collector again decided on 4/6-7-1986 that the said product is dutiable under Tariff Item 68. Against this order, the petitioner again filed an appeal before the Collector (Appeals), who disposed of the same by his order dated 26-9-1988. He held that with effect from 28-8-1987, the said product (Dant Manjan Lal) has acquired the status of an Ayurvedic medicine drug and is, therefore, exempt from duty. He did not say anything about the position prior to 28-8-1987. Against this appellate order, both the petitioner and the Department filed appeals before the CEGAT, which resulted in the order dated 10/12-7-1990. The CEGAT set aside the Collector's finding that with effect from 28-8-1987 the product Dant Manjan Lal has become an Ayurvedic drug and held that it is classifiable under Tariff Item 68 as cosmetic. However, the matter was remanded to the Collector (Appeals) to examine the petitioner's claim for exemption under Notification No. 179/77, dated 18-6-1977. In other words, the remand was for a limited purpose of examining whether in manufacturing the product in question, power was used or not. These proceedings are still pending.;