- (1.) HEARD the learned counsel for petitioner.
(2.) BRIEF facts of the case are that a notice to show cause dated 02.02.2010(Annexure-1) was issued to petitioner for alleged evasion of central excise duty amounting to Rs.11,05,607/- and after considering the submissions of the petitioner, adjudicatory order dated 20.05.2011(Annexure-2) was passed, whereby demand of Rs.11,05,607/- was confirmed with interest and penalty of Rs.11,05,607/- was also imposed. Being aggrieved with the above order, an appeal was preferred by the petitioner before the Commissioner(Appeals) under Section 35 of the Central Excise Act, 1944, along with stay application. Appellate Authority vide its order dated 26.08.2011/06.09.2011(Annexure-4), disposed off the stay application and directed the petitioner to deposit Rs.11,05,607/- within four weeks. It was also directed that on deposit of this amount, recovery of interest and penalty amount will remain stayed till disposal of the appeal. Subsequently, an application for modification of the stay order was filed by the petitioner, but the same was rejected by the Appellate Authority vide order dated 28.12.2011(Annexure-6). Being aggrieved with the aforesaid two orders passed by the Appellate Authority, the present writ petition has been filed. Submission of the learned counsel for petitioner is that levy of excise duty is contrary to the provisions of the Act; order of adjudicatory authority is absolutely illegal and without jurisdiction, therefore, entire amount should have been stayed during pendency of the appeal. We have considered the submissions of the learned counsel for the petitioner. Appellate Authority has already stayed recovery of amount of interest and penalty to the tune of Rs.11,05,607/- and has directed the petitioner to deposit only the amount of excise duty of Rs.11,05,607/-. It is settled proposition of law that in the matter of money, there cannot be any irreparable injury to the petitioner as order of refund of amount can be passed in case appeal is allowed. In these circumstances, we do not find any merit in this writ petition and the same is, accordingly, dismissed.
(3.) AS prayed by the learned counsel for petitioner, we grant two weeks' more time to deposit the amount in question, as per order of the Appellate Authority referred above. In case, the said amount is deposited within the aforesaid period, then appeal will be heard on merits.;