2001 (12) TMI 75 - HC - Central Excise

Summary

Issues:
1. Quashing of orders dated September 14, 2001 and October 18, 2001 for waiver of pre-deposit.
2. Classification of 'Salinomycin 350 Mycelia' as a supplement to animal feed under Tariff Item 23.02 or as an antibiotic under Tariff Item 29.41.
3. Error in directing the petitioner to pay Rs. 1 crore under Section 35F of the Central Excise Act, 1944.

Analysis:
1. The petitioner sought to quash orders for waiver of pre-deposit. The Commissioner (Appeals) directed a deposit of Rs. 1 crore within 15 days due to a demand raised by the adjudicating Authority. The petitioner's request for review was declined. The Court considered if the authority erred in this direction, which was found in conformity with Section 35F. The Court upheld the order but directed the appeal's expeditious decision within three months of deposit, which the petitioner was to make within two weeks.

2. The petitioner claimed 'Salinomycin 350 Mycelia' as a food supplement under Tariff Item 23.02, while the respondents argued it falls under Tariff Item 29.41 as an antibiotic. Legal contentions were made by both sides regarding the correct classification. The Court did not delve into the merits of the case but focused on the authority's direction for payment under Section 35F, finding no undue hardship to the petitioner to warrant waiver of the deposit.

3. The petitioner referenced a Supreme Court decision to support their position that excise duty was not leviable on the product, which had led to a waiver of pre-deposit in a previous order. The respondents contended that the duty was correctly levied and the order was in line with Section 35F. The Court clarified the criteria for dispensing with the deposit requirement under this section and upheld the authority's decision, emphasizing the lack of undue hardship to the petitioner. The Court directed the petitioner to deposit the amount, with a provision for refund if the appeal succeeded.