- (1.) This Central Excise Appeal No. 145 of 2009 has been filed under Section 35G of the Central Excise Act, 1944 by M/s. Lamicoat International Private Limited against the order dated 27th May, 2009 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as the "Appellate Tribunal') on the stay application by which the appellant has been directed to make a pre-deposit of Rs. 18,61,416/- towards duty and an equal amount towards penalty within eight weeks. The Appeal had been filed before the Appellate Tribunal against the order dated 7th November, 2008 passed by the Commissioner, Customs and Central Excise, NOIDA. The appellant-company is manufacturing laminated polyester film and metallised polyester film. By the order dated 7th November, 2008 demands of duty of Rs. 8,45,11,283/-, Rs. 15,68,167/-, Rs. 75,80,380/-, Rs. 14,70,682/- and Rs. 3,90,734/- were confirmed and an equal amount of penalties were imposed by the Commissioner against which the Appeal along with stay application was filed before the Appellate Tribunal.
(2.) The Appellate Tribunal after considering the submissions advanced by the learned counsel for both the parties decided the stay application with the following observations :- "We have carefully considered the submissions from both sides. There can be no dispute that the judgment of the Hon'ble Supreme Court declares the law as it was even earlier. In the present case, we find that duty on the metalized films and laminated polyester films have been duly assessed (assessed by the assessee and, for some period, by the Department also) and paid to the Central Govt.; the credit on inputs during the said period was also validly taken. In these circumstances, we are in agreement with submissions of the learned Advocate that demand under Section 11D and demand of Rs. 15,58,167/- in respect of inputs gone into exports and the demand of Rs. 75,80,380/- in respect of intermediate product may not be sustainable. However, the rest of the demands relates to clandestine removal which is not being disputed at the stay stage by the applicants. All the above observations are prima facie view taken for the purpose of disposal of the stay petitions. Therefore, we direct the applicant to deposit Rs. 18,61,416/- (rupees eighteen lakhs sixty one thousand four hundred sixteen) [Rs. 14,70,682/- + Rs. 3,90,734/-] towards duty within eight weeks from today and an amount of penalty of Rs. 18,61,416/- (rupees eighteen lakhs sixty one thousand four hundred sixteen) [Rs. 14,70,682/- + Rs. 3,90,734/-]."
(3.) I have heard Sri M.P. Devnath, learned counsel appearing for the appellant and Sri S.P. Kesarwani, learned counsel appearing for the respondent. The Appellate Tribunal, by way of interim protection, has directed the appellant to deposit only that demand of Rs. 14.70 lacs and Rs. 3.90 lacs towards duty and an equal amount towards penalty which was not disputed before the Appellate Tribunal when the stay application was heard and waived the condition of pre-deposit in respect of the remaining amount.;