R.K. Agrawal and Sanjay Misra, JJ. - (1.) By means of the present writ petition filed under Article 226 of the Constitution of India the petitioner, M/s Adhunik Food Products (Pvt.)Ltd. Dehradun through its Director Sh. Deepak Garg seeks the following reliefs: A. to issue a suitable writ, order or direction in the nature of mandamus directing the Central Excise & Service Tax Appellate Tribunal i.e the respondent No. 2 to hear the Appeal No. E/708-11/06 filed by the petitioner (Annexure 13 to the writ petition) on merits without insisting on the condition of any pre-deposit. B. to issue a writ, order or direction in the nature of mandamus directing the Central Excise & Service Tax Appellate Tribunal i.e. the respondent No. 2 to allow the petitioner to dispense with the requirement of pre-deposit of Rs. 1,91,10,579. C. to issue a writ, order or direction in the nature of certiorari quashing the Interim Stay Order No. S/347-50/2006 dated 10.4.2006 (Annexure 1 to the writ petition) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi i.e. respondent No. 2. D. to issue any other suitable writ, order or direction which this Hon'ble Court may deem fit in the facts and circumstances of the case. E. to award the costs of the petition to the petitioner.
(2.) Briefly stated the facts giving rise to the present writ petition are as follows:
(3.) According to the petitioner it is engaged in the manufacture of puffed wheat and puffed soya nuts in its factory which are basically food preparations meant for infant use and it is claimed that they are classifiable under Chapter 21 of the First Schedule of the Central Excise Tariff Act, 1985. Pursuant to the certain investigations adjudication proceedings were commenced which culminated in the order in original dated 20th November, 1997 passed by the Commissioner of Central Excise. The appeal preferred by the petitioner before the Central Excise & Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal) which disposed of the appeal vide order dated 9th November, 2001 and misc. order dated 10th June, 2002 by holding that the goods, namely, puffed wheat and puffed soya nuts are classifiable under heading 19.04 and 21.07/21.08 respectively of the Schedule of the Central Excise Transit Act, 1985. The Tribunal, however, remanded the matter back to the adjudicating authority to consider the claims on account of cum-duty, SSI exemption, freight paid and sales tax paid by the petitioner against which according to the petitioner an appeal has been filed before the Hon'ble Supreme Court which has been admitted on 4th February, 2002. In the remand proceedings, after taking into consideration the explanation given by the petitioner, the Commissioner of Central Excise, Meerut had passed an order dated 30th November, 2005 wherein he has allowed certain deductions but has confirmed the demand of duty amounting to Rs. 2,06,10,579/- along with interest with an equivalent amount of penalty as also some amount of penalty was imposed on the Directors personally. The petitioner has preferred an appeal against the order dated 30th November, 2005 before the Tribunal. Along with the appeal the petitioner has also filed an application for waiving the requirement of pre-deposit of the amount of duty and the penalty as also for stay of realizing the entire amount. The Tribunal vide order dated 10th April, 2006 had rejected the application, in so far as the deposit of the duty is concerned. However, it has waived the requirement of the deposit of the amount of penalty and directed the petitioner to deposit the entire amount of duty. The order dated 10th April, 2006 passed by the Tribunal is under challenge in the present writ petition.;