2008 (10) TMI 566

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....p;              Ord[er per : S.L. Peeran, Member (J) (Oral)]. - The appellant is required to pre-deposit duty of Rs. 1,07,65,000/- and penalties of Rs. 1,07,65,000/- under Section 112(a) and (ii) Rs. 1,07,65,000/- under Section 114A of the Customs Act, 1962. By Misc. Order No. 401/2008, dated 11-9-2008, an interim order of stay was granted and the Commissioner of Central Excise was called upon to explain as to why the matter should not be referred to the Chairman of the Central Excise Board for initiating disciplinary action for using unsavory remarks in Para 45 of the order. The Commissioner has sent his reply seeking apology for using unsavory words and the English idiom ....

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....tion is taken up for consideration. The Counsel submits that this Bench has granted waiver of pre-deposit by Stay Order No. 417/2008 dated 1-5-2008 [2008 (230) E.L.T. 653 (Tri.)] wherein the duty demand element involved was more than Rs. 5 crores and penalty was equal amount. He submits that the appeals have been listed for out of turn hearing on 17-11-2008. He prays for waiver of pre-deposit and also for linking this appeal. 5. We have carefully considered the submissions. We notice that the facts of the case are similar to the one in which Stay order has been granted in the assessee's own case. Paragraphs 5 and 6 of the Stay Order No. 417/2008, dated 1-5-2008  are reproduced herein below :- "5. The appellants procured....

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....also brought to our notice a departmental circular on this issue which says when unintended by-products emerge one cannot demand duty on the Naphtha and one cannot say that Naphtha was not used for the manufacture of fertilizers. The submission of the learned Advocate is that the entire Naphtha procured duty free has been used only for the intended purpose, which is manufacture of fertilizers. The separation of Carbon Dioxide is a technological necessity in the process. It is also stated that at the particular point of time the Carbon Dioxide has to be removed because it will be a poison in the system and therefore this Carbon Dioxide which is removed has been either sold partly and partly used for conversion into Ammonium Bicarbonate. Furt....