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TMI Blog2014 (9) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Tribunal and it may defeat the very object of the waiver petition. But, the petitioner having failed to comply with the condition of pre-deposit of ₹ 1,50,00,000/- imposed by the Commissioner (Appeals), it cannot find fault with the first respondent’s action in passing the impugned order. - It is settled law that when there is no stay of the proceedings, it is always open to the authorities to initiate appropriate recovery proceedings. However, the first respondent, in the light of the directions issued by this Court in Writ Petition No. 34350 of 2003, ought to have considered the case of the petitioner. During the course of arguments, it is reported that there is now regular sitting of the Bench and if the second res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter 85.35 of the Central Excise Tariff Act, 1985 and cleared them at the rate of 10% ad valorem. However, the Deputy Commissioner of Central Excise, Chennai-II Division, issued show cause notices, proposing to classify the isolators as only parts of isolators falling under Chapter 85.38 of the Tariff Act, for which, the petitioner submitted its objections. Not satisfied with the objections, the Deputy Commissioner of Central Excise, Chennai-II Division, by an Order-in-Original No. 30/2002, dated 29-8-2002, confirmed the show cause proposals and passed a single adjudication order for the entire period in question, imposing a differential duty of ₹ 3,90,89,657/- and a penalty of ₹ 1,00,000/- under Rule 173Q of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that there is no stay of recovery proceedings. Aggrieved by the same, the petitioner has preferred the present writ petition. 3. The first respondent has filed a counter-affidavit, wherein it is stated that the petitioner had manufactured and cleared isolators under Chapter 85.35 of the Tariff Act, from their Porur Factory from 1-10-1993 to 28-2-1997 by paying 10% ad valorem. However, the Deputy Commissioner of Central Excise, Chennai-II Division, issued show cause notices, proposing to classify the isolators under Chapter 85.38 of the Tariff Act and passed an Order-in-Original No. 30/2002, dated 29-8-2002, imposing a differential duty of ₹ 3,90,89,657/- and a penalty of ₹ 1,00,000/- under Rule 173Q of the Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and the High Court has pronounced that the powers of Central Excise Officers to detain any movable and immovable properties until the amount payable is paid was not circumscribed by any condition. It is also stated that the first respondent, based on the instructions issued by the Chief Commissioner (TAR) at C.B.E. C., New Delhi, communicated through the Chief Commissioner, Chennai, passed the impugned order, directing the petitioner to comply with the demand contained in the Order-in-Original No. 30/2002, dated 29-8-2002. Therefore, the impugned order is sustainable and the writ petition is liable to be quashed. 4. Mr. N. Sriprakash, learned counsel appearing for the petitioner, would make a consistent plea that when the appeal alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner classified them under Chapter 85.35, chargeable with duty at 5% or 10%, the Deputy Commissioner of Central Excise, Chennai-II Division claimed that they should be classified under Chapter 85.38, attracting a higher duty. Ultimately, the adjudicating authority passed the order dated 29-8-2002, imposing a differential duty of ₹ 3,90,89,657/- and a penalty of ₹ 1,00,000/- under [Rule] 173Q of the Rules. The petitioner filed an appeal before the Commissioner (Appeals) and also for waiver of pre-deposit and stay of recovery of the demands. The Commissioner (Appeals) by order dated 28-8-2003 directed the petitioner to pre-deposit a sum of ₹ 1,50,00,000/- on or before 15-10-2003, which was not complied with. Pursuant to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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