Hemant Gupta, J. - (1.) THE present appeal under Section 35G of the Central Excise Act, 1944 (for short "the Act"), is directed against the order dated 22 -9 -2011 passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short 'the Tribunal'), whereby while setting aside the order passed by Adjudicating Authority, the appellant was directed to deposit Rs. 80 lacs so as to secure the interest of revenue and that delaying tactics are not adopted by the appellant. The Adjudicating Authority vide order dated 12 -2 -2009 (Annexure A9) raised a demand of duty of Rs. 3,65,16,786/ - from the appellant under Section 11A of the Act out of which Rs. 20 lacs, already stands deposited by the appellant. There was also order to pay interest on delayed payment under Section 11AB of the Act and separate penalties on the two Directors and one Accountant of the company.
(2.) THE learned Tribunal while considering the application for waiver of the pre -deposit under Section 35F of the Act and the appeal on merits, set aside the order passed by the Adjudicating Authority but directed the appellant to make deposit of Rs. 80 lacs within 8 weeks in view of judgment passed by this Court in Shiv Sewa Sadan v. CESTAT, New Delhi, - : 2010 (254) E.L.T. 249 (P & H) : : 2011 (22) S.T.R. 118 (P & H). Learned counsel for the appellant has argued that: - - (i) The learned Tribunal has recorded adverse comments against the appellant which are required to be expunged being unwarranted and untenable. (ii) In exercise of jurisdiction under Section 35C of the Act, the Tribunal could not order to deposit Rs. 80 lacs when the order of Adjudicating Authority is being set aside. (iii) That the amount of Rs. 80 lacs is highly excessive and disproportionate to the extent of liability which may arise against the appellant when the substantial demand of Rs. 1,03,21,692/ - was prima facie unacceptable to the Tribunal though levy of such duty has also been remanded back to the Adjudicating Authority for verification. (iv) That the Tribunal has not ordered the adjustment of Rs. 20 lacs already deposited by the appellant and that instead of cash deposit of the amount as directed by the Tribunal, the appellant may be permitted to deposit the amount through a Bank Guarantee.
(3.) A perusal of the order passed by Adjudicating Authority shows that there was clandestine removal of goods giving rise to demand of duty of Rs. 2,61,95,174/ - and undervaluation of goods giving rise to duty demand of Rs. 1,03,21,612/ -.;