M.KARPAGA VINAYAGAM, J. - (1.) THIS writ petition filed by the petitioner, M/s Arya Steels Private Ltd. is directed against the orders passed by respondents 2 and 3, namely, ustoms, Excise and Service Tax Appellate Tribunal and the Commissioner of Central Excise. Both these orders dated 4.9.2003 and 26.5.2004 respectively are the impugned in this writ petition for being quashed by issue of writ of certiorari.
(2.) THE short facts are as follows: (i) The petitioner is running a re -rolling mill, which is engaged in manufacturing of bars and rods of non -alloy steel. As per Section 3A of the Central Excise Act, the petitioner is required to pay Central Excise Duty on the goods produced on the basis of Annual Capacity of Production (ACP) of re -rolling mill. (ii) On 21.8.1997, the petitioner sent a representation to the Commissioner, Central Excise informing its willingness to avail the scheme, as prescribed under Rule 96ZP of the Central Excise Rules. (iii) Accordingly, the Commissioner, by the order dated 23.2.1998 fixed the ACP in respect of the petitioner's factory at 4930.864 MTs. (iv) Thereupon, the petitioner moved the High Court challenging the validity of Section 3A of the Act. (v) In that writ petition an interim order was passed. In pursuance of the said interim order, petitioner calculated its actual production for the period from September 1997 to August 1998 at 1583.55 MTs. And discharged its liability by making the payment towards the Excise Duty. (vi) On 22.9.1998, the petitioner sent another representation to the Commissioner of Excise disputing the ACP fixed by him by the order dated 23.2.1998, thereby requesting the Commissioner to refix the ACP (vii) The said representation was rejected by the Commissioner on 9.12.1998. (viii) Thereupon, the petitioner filed an appeal before the CEGAT, which, in turn set aside the order and remanded the matter for fresh adjudication. (ix) On that basis, the matter was re -opened. The Commissioner of Central Excise again adjudicated the matter afresh and confirmed the ACP, which was earlier fixed and dismissed the representation filed by the petitioner. (x) Against this order, the petitioner filed an appeal before the Appellate Tribunal. The Appellate Tribunal, while entertaining the appeal passed stay order on 26.5.2004, on the condition that the petitioner has to make a pre -deposit of Rs.17lakhs out of the total duty demanded within eight weeks from 26.5.2004, i.e., on or before 3.8.2004 and stayed recovery of balance of the duty demanded and whole of the penalty and interest as pre -condition for hearing the appeal. (xi) The petitioner requested for modification of the order passed on 26.5.2004.The said request was rejected. (xii) Hence, the petitioner filed the present writ petition seeking for the quashing of the order of both the authorities dated 4.9.2003 and 26.5.2004. (xiii) In the meantime, the Tribunal took up the appeal on 3.8.2004 and on noticing that conditional deposit has not been made, dismissed the appeal by the order dated 3.8.2004. (xiv) Thereupon, he added one more prayer in this present writ seeking for the quashing of the order dated 3.8.2004 as, well. Mr. R, Santhanam, the learned counsel for the petitioner would make elaborate submissions challenging the orders referred to above passed by the authorities and also filed an elaborate written submissions. The gist of his submissions is as follows: - "The order earlier passed by the Commissioner of Excise on 23.2.1998 fixing the estimated production capacity as 4930.864 MTs. is in ex parte order, mechanically passed without proper application of mind. The said order was passed disregarding the earlier orders passed by this Court on various dates from 17.12.1997 onwards. The very same order was confirmed by the order dated 4.9.2003 by the Commissioner even though the earlier order was set aside by the Tribunal asking for directing the Commissioner to give a fresh adjudication. Further order has been passed on 4.9.2003 without giving proper opportunity to the petitioner violating the principles of natural justice and without taking into consideration the various orders passed by this High Court as well as Supreme Court. The Tribunal also did not apply its mind while directing pre -deposit of Rs.17laklls nor was it justified in refusing to recall its order dated 26.5.2004 and without adjusting the amount paid earlier. Both authorities have failed to adjust the amount already paid by the assessee and failed to take into account the refund due to the assessee. Thereupon, on 3.8.2004, the Tribunal simply dismissed the appeal without considering the orders. Therefore, the orders passed by the authorities on various dates are wrong;
(3.) IN reply to the above submissions, Dr. J.P. Gupta, learned counsel appearing for the respondents has submitted: - "Against the order dated 4,9.2003 an appeal has been filed before the Tribunal and the Tribunal while entertaining the appeal, followed the provisions of Section 35F of the Central Excise Act and passed a conditional order of stay dated 26.5.2004 directing the petitioner to deposit Rs.17lakhs out of the duty demanded pending disposal of the appeal and therefore, the merits of the matter could be argued before 1he Tribunal after complying with the conditions imposed by the Tribunal while the appeal is taken up for hearing and as such this Court may not under Article 226 consider the merits of the matter as the petitioner has not chosen to avail the remedy available before the Appellate Tribunal.";