AMITAVA LALA, J. - (1.) THE Court: By making this Writ Petition, the Petitioners, virtually, asked for dispensation of requirements of pre -deposit along with prayers for not giving effect or further effect and/or taking any steps or further steps in connection with the Order dated 5th April, 2000 by the Respondent No. 2 and order dated 1st Feb., 1999 passed by Respondent No. 1 and further and other order or orders in connection thereto.
(2.) SINCE the subject matter in issue is merged with the order of the CEGAT [Customs, Excise and Gold (Control) Appellate Tribunal] Eastern Branch, Calcutta there is no question that it can be opened for the Court's interference without going to the ultimate findings particularly when the subject matter of challenge is the order of Tribunal dated 5th April, 2000. The relevant part of such order of Tribunal for consideration of this Court is as follows: After hearing both the sides we find that the issue of classification of the steel products manufactured by the appellants is quite arguable from both the sides and no opinion can be expressed at this point without appreciating the submissions made by both the sides in detail. As regards the limitation also it is seen that the appellants have had not taken any steps in intimating the department about their manufacturing activities. They are only relating (sic) upon the classification lists filed by the other assessees in support of their arguments that they were under a bona fide belief that the steel seats so manufactured by them were entitled to benefit of exemption notification. The grounds raised by the appellants as regards the limitation also can be gone into only at the time of final hearing of the appeal inasmuch as the appellants have not made out a prima facie case on this aspect in their favour. The appellants reliance on para 16 of Kerala High Court judgment also does not come to their rescue inasmuch as the issue before their lordships was classification of a particular product wherein it was observed, after taking into note the view expressed by the Board of Revenue that principles of taxability cannot vary [from] person to person. Merely because exemption was granted to the other assessees the appellants do not automatically become entitled to the exemption. The issue has to be examined on the basis of merits. As regards the financial position we fully agree with the submissions made by the Ld. Advocate for the Revenue that two different profit and loss accounts reflecting different figures for the year ending 31.3.1998 have been placed on record by the appellants, apart from the fact that the same are either not signed by anybody or are signed by the partner only. No corresponding receipts as against the TDS deducted in the respective years have been shown in the balance sheets. Accordingly, we are fully convinced that the financial position of the appellants as reflected in the balance sheet does not reflect their correct financial position. However, keeping in view the arguable nature of the appeal and the other facts and circumstances we direct the appellants to deposit an amount of Rs. 20 lakhs (Rupees twenty lakhs) within a period of six weeks from the date of receipt of the order. Subject to above deposit the balance amount of duty and penalty shall stand waived and its recovery stayed during the pendency of the appeal. It is made clear that failure to deposit the above amount would result in automatic dismissal of the appeal without any further notice to the appellants. Matter to come up for ascertaining compliance on 1.6.2000.
(3.) IT appears from the penultimate paragraph of the judgment and order passed by the Tribunal that three aspects are coming out from there. Firstly, the question of discrimination; secondly, the question of limitation and thirdly, the question of reasonableness in respect of imposition of tax and other liabilities in connection thereto.;