TaxTMI 
TaxTMI 
2010 (9) TMI 367
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....ther writ, order or directions in the nature of certiorari, quashing and setting aside the impugned Stay Order No. Order No. S/61/WZB/Ahmedabad/06 Dated 12th October, 2006. (ii) to issue a writ of certiorari, or order other writ, order or directions in the nature of certiorari, quashing and setting aside the impugned Order No. A/162/WZB/Ahmedabad/2207 and Order No. M/118/WZB/Ahmedabad both Dated 11th January, 2007. (iii) to issue a writ of certiorari, or order other writ, order or directions in the nature of certiorari, quashing and setting aside the Order-in-Appeal No. Commr (A)/49/ VDR-II/2006 Dated 11-5-2006 passed by the Commissioner (Appeals) Central Excise & Customs, Vadodra. (iv) con....
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...., held that 'Makai Poha' was classifiable under Heading 11.01 of the Tariff Act and not under Heading 19.04 and dropped the related demands pertaining to the period 1994-95 to 1998-99 and 1999-2000. The aforesaid order dated 24-1-2005 came to be challenged by the revenue by way of appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide order dated 25-4-2006 allowed the appeal holding that Makai Poha would fall under Heading 19.04 of the Tariff Act. For the purpose of holding that Makai Poha would fall under Heading 19.04, the Commissioner (Appeals) placed reliance upon the decision of the Tribunal in the case of Favourite Food Products v. Commissioner of Central Excise, 2001 (127) E.L.T. 131 (Tri.-Mumbai). Being ag....
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....matter on 23-11-2006 to the Larger Bench of the Tribunal by not agreeing with the decision of the Tribunal in the case of Favourite Food Products v. CCE (supra) and requested that the stay order dated 12-10-2006 be modified and complete waiver of pre-deposit and penalty be granted. Vide the impugned order dated 11-1-2007 the application for modification of stay order came to be dismissed by the Tribunal. The Tribunal also observed that since the pre-deposit had not been made in terms of the order dated 12-10-2006, the appeal stood dismissed on 12-12-2006. Being aggrieved, the petitioner has moved the present petition challenging the order dated 12-10-2006 as well as order dated 11-1-2007 made by the Tribunal. 3. Mr. Anand Nainavati,....
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.... held that 'Makai Poha' is classifiable under Heading 11.01 of the Tariff Act. 4. On the other hand, Mr. R.J. Oza, learned Senior Standing Counsel for the respondents, has opposed the petition submitting that in the light of the fact that the petitioner had not complied with the order directing pre-deposit of 50% of the duty demand, the Tribunal was justified in dismissing the appeal. 5. The facts are not in dispute. Vide order dated 12-10-2006 the Tribunal, in the light of the decision of the Tribunal in the case of Favourite Food Products v. CCE (supra) had found that prima facie no case had been made out at that stage and accordingly, had directed the petitioner to deposit 50% of the amount payable under the order....
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....nal had directed that the matter be posted for compliance report on 20-12-2006. Before the date of reporting compliance, the petitioner on 15-12-2006 moved the application for modification in the light of the fact that the decision on which the Tribunal had placed reliance for the purpose of denying full waiver to the petitioner had been referred to the Larger Bench. The Tribunal in the impugned order dated 11-1-2007 has observed that since the amount was not deposited the appeal stood dismissed on 12-12-2006 and that the modification application made thereafter on 15-12-2006 could not have been entertained since the appeal stood dismissed. The Tribunal, after accepting the oral request of learned advocate for the applicant to add prayer cl....
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....006, the Tribunal had itself referred the decision in the case of Favourite Food Products v. CCE (supra) to the Larger Bench. When, the Tribunal had itself directed the matter to be posted for reporting compliance on 20.12.2006, if as observed in the impugned order dated 11.1.2007, the appeal stood dismissed on 12.12.2006 for noncompliance of the directions issued vide order dated 12.10.2006, it is difficult to comprehend as to which matter was to be posted for reporting compliance on 20.12.2006. Thus, both things, viz. dismissal of the appeal ipso facto on 12.12.2006 for non-compliance of the order dated 12.10.2006 and posting of the matter for reporting compliance on 20.12.2006 cannot co-exist together. Besides, the petitioner herein, in ....