TMI Blog2010 (9) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner. Shri R.J. Oza, Sr. Standing Counsel, for the Respondent. [Judgment per : H.N. Devani, J. (Oral)] - This petition has been filed with the following substantive prayers : In view of the facts and circumstances abovementioned, it is respectfully prayed that this Hon'ble Court may be pleased : (i) to issue a writ of certiorari, or order other 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) consequently, to issue a writ of mandamus, or other writ, order or direction in the nature of mandamus, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the Tribunal observed that the Tribunal in Favourite Food Products v. Commissioner of Central Excise, Rajkot (supra) has categorically held, in respect of the said item 'Makai Poha' that it was classifiable under Heading 19.04 of the Tariff. That in respect of the contention relating to classification, prima facie, the petitioner had not made out any case at that stage in view of the decision of the Tribunal in Favourite Food Products (supra) and directed that there shall be interim stay of the order impugned before it by depositing 50% of the amount payable thereunder within eight weeks from the date of the order, failing which the appeal would stand dismissed. Subsequently, on 23-11-2006, in the case of Mahavir Food Products v. Commissioner of Central Excise, Vadodara [2007 (211) E.L.T. 29 (Tribunal)] the aforesaid decision of the Tribunal in the case of Favourite Food Products (supra) came to be referred by the Tribunal to the Larger Bench. The petitioner, therefore, on 15-12-2006 filed an application for modification of the stay order dated 12-10-2006 on the ground that there was a change in circumstances inasmuch on the very same issue of classification of 'Maka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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 impugned before it within a period of eight weeks from the date of the order. Computing the period of eight weeks from the order, the petitioner was required to deposit the amount on or before 12-12-2006. The Tribunal had also directed that the matter be posted for compliance report on 20-12-2006. Prior to the last date for depositing the amount in terms of the order dated 12-10-2006 of the Tribunal, on 23-11-2006 the decision of the Tribunal in the case of Favourite Food Products came to be referred by the Tribunal to the Larger Bench. In the light of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no change in circumstances to justify any modification on that count. It was further observed that since the pre-deposit was not made, the appeal stood dismissed on 12-12-2006. The Tribunal, accordingly, did not find any valid reason to modify the order requiring the pre-deposit or to restore the appeal for that purpose and rejected the application. 7. On a bare perusal of the impugned order made by the Tribunal two things are apparent. Firstly, though the petitioner had been directed to deposit 50% of the amount payable within eight weeks from the date of the order, that is, on or before 12.12.2006, the Tribunal had directed that the matter be posted for reporting compliance on 20.12.2006. Secondly, prior to the last date of making the predeposit, on 23.11.2006, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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