- (1.) The petitioner manufactures corrugated boxes and papers cones falling under chapter sub-headings 4819.12 and 4822.00 of the Central Excise Tariff Act, 1985. Corrugated boxes were exempt from excise duty and paper cones were also exempt from Central Excise Duty on account of the clearance of the same being within the small scale exemption limit. The petitioner was also exempt from the registration. On 31-3-1997 Central Excise Officers visited the factory of the petitioner and found that the petitioner was operating the factory without registration and maintaining statutory records and was liable to pay Central Excise duty on the intermediate goods i.e. laminated printed paper sheets (covered by BOPP Film) which were being used captively in the manufacture of corrugated boxes and he was also liable to pay duty on paper cones as their clearance of laminated printed paper sheets and paper cones exceed the small scale exemption limit. Consequently, a show case notice was served upon the petitioner requiring him to show cause as to why the goods seized may not be confiscated and why he may not be penalized for contravention of the various provisions of the Central Excise Act, and Rules. He was also required to show cause as to why Central Excise duty amounting to Rs. 7,82,894.00 be not recovered from him for the period 1995-96 and 1996-97. The petitioner contested the said notice on various grounds. One of the grounds was that the notice served was beyond the period of limitation as provided under Section 11A of the Central Excise Act. The Additional Commissioner (Central Excise) Noida repelled the contention of the petitioner and by passing an order confirmed a demand of Rs. 7,82,894.00 as the amount of Excise duty in terms of the notice. Penalty of Rs. 7,82,894.00 was also imposed upon the petitioner. Against that order the petitioner filed an appeal before the Commissioner (Appeals), Customs & Central Excise, Ghaziabad. An Application under Section 35F of the Central Excise Act for waiving condition of pre-deposit of the amount of excise duty and penalty was also moved on various grounds which had been dismissed by the Commissioner (Appeals) by the impugned order dated 17-6-1999.
(2.) The petitioner has challenged the said order dated 17-6-1999 and has prayed for quashing the same and for further direction to the Commissioner (Appeals) to decide the appeal on merit without insisting on fulfilling pre- deposit condition and further to direct the respondents not to initiate the recovery proceedings during the pendency of the appeal. Counter and rejoinder affidavits have been exchanged.
(3.) Shri A.P. Mathur, learned Counsel for the petitioner and Shri S.P. Kesharwani, Learned Standing Counsel for the respondents have been heard. With the consent of the learned counsel for the parties the petition is being disposed of finally at the admission stage itself.;