MERCANTILE COMPANY Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This writ petition is arising out of an order passed by the Customs Excise & Gold (Control) Appellate Tribunal, Eastern Bench, Calcutta dated 5th January, 2000 which was reviewed by the self-same Bench on the basis of an application in the form of modification of the order.

(2.) It appears from the order of the Tribunal that demand of duty is Rs. 42,62,862/- and Rs. 14,729/- plus Rs. 20,000/- as fine and Rs. 42,62,862/- as penalty. The question raised before the CEGAT is that the case of the petitioners is covered under the Chapters 38 and 29 of the concerned Tariff and cannot be considered under Chapter 34 of the Tariff which was wrongly done by the Authority and tax, fine and penalty were imposed. Therefore, there is a strong prima facie case on their behalf so that pre-deposit can be excused for preferring an appeal from such order.

(3.) The learned Counsel further contended before this Court that the question of limitation is also involved in this case which was not considered by the CEGAT. Therefore in case of any appeal or revision the petitioners will be excused from pre-deposit having a strong prima facie case. In support of his contentions learned Counsel for the petitioner has relied upon ( Srikant Prasad v.Commissioner of Central Excise,1999 113 ELT 171) , [ Bongaigaon Refinery & Petrochem. Ltd. v.Collr. of C. Ex., 1994 69 ELT 193], ( Hari Fertilisers v.Union of India & Others, 1985 22 ELT 301) , (J.N. Chemical (Pvt.) Ltd. v.CEGAT, 1991 53 ELT 543) and ( Tullu Engineering Works V/s. Union of India, 1993 64 ELT 184 ) to establish that whenever there is prima facie case out of which one is the question of limitation, the condition of pre-deposit can be excused since it is a strong prima facie case of preferring an appeal.