- (1.) In view of the order as proposed to be made, not much need be recorded as to the facts. The first appellant company is engaged in the manufacture of biscuits. Some of the biscuits are exempted from duty; duty is paid on the other biscuits manufactured by the first appellant. In connection with the business of the first appellant, several services are common to both the exempted part of the business and the dutiable part thereof. The Central Excise authorities perceived that the accounts pertaining to the exempted goods and the manufacture thereof on the one hand, and the dutiable goods and the manufacture thereof on the other, were not segregated such that common services would overlap. A show-cause notice was issued. The appellant company purported to bifurcate the accounts, including apportioning the parts of the common services availed of in both the processes of manufacture of dutiable goods and the exempted goods. In course of the hearing before the Commission, several grounds were urged by the appellants and a number of decisions, including those of the Supreme Court, were also cited. The hearing culminated in a rather detailed order of May 9, 2017 being issued. By such order, the Commissioner confirmed the demanded amount in excess of Rs. 26. 16 crore.
(2.) The Commissioner also directed payment of interest under Rule 14 of the Cenvat Credit Rules, 2004 read with the appropriate provisions of the Central Excise Act , 1944. A penalty of equal amount of Rs. 26. 16 crore was imposed and the amount of Rs. 70 lakh and odd that had been deposited was required to be appropriated along with a further amount of about Rs. 7. 46 lakh.
(3.) There is no dispute that under Section 35-B of the Act of 1944, an appeal against the order dated May 9, 2017 lay. However, instead of preferring the appeal, the appellants chose to invoke Article 226 of the Constitution.;