ORDER
Archana Wadhwa, Member (J)
1. The prayer in the application is to dispense with the condition of pre-deposit of duty amount of Rs. 1,44,97,287/- and personal penalty of Rs. 25 Lakhs imposed upon the first applicant M/s. Anil Products Ltd. and Rs. 1 Lakh each imposed on the other two applicants.
2. After hearing the learned Advocate appearing for the appellants, we find that show cause notice dtd. 28-8-1997 was issued to the appellants raising demand of duties for the period August 1992 to June 1997 on the ground that Calcium Gluconate IP manufactured by them is not classifiable as medicament under Chapter 30 but the same is appropriately falling under Chapter 29 as Organic chemical. The said show cause notice was adjudicated by the Commissioner vide his order in September 1997 who dropped the majority of the demand as barred by limitation, thus confirming an amount of Rs. 9,61,495.00 which was within a period of six months. He has not imposed any penalty upon the appellants by observing that there is no mala fide on their part, inasmuch as they were filing requisite declaration and classification list, which were approved by the proper officer.
3. The above order of the Commissioner was appealed against by the appellant on the ground that he should not have confirmed demand even for a period of six months in view of law declared by Hon’ble Supreme Court decision in the case of Cotspun Ltd. The order was also challenged on merits. The said order was remanded by Tribunal vide its Order No. C-II/43/WZB/2004 dtd. 5-1-2004 with directions. The impugned order has been adjudicated by the Commissioner in de novo proceedings, confirming the demand raised for the entire five years period, by observing that there was wilful suppression on the part of the appellant and he does not agree with findings of the earlier adjudicating Commissioner who held the demand to be time barred.
4. ft is the appellant’s grievance that the demand having been dropped by the earlier adjudicating authority as time barred and no penalty having been imposed by him, it was not open to the present adjudicating Commissioner to confirm the demand for the entire period and to impose penalty, especially when the earlier order was not appealed against by the Revenue and had attained the finality.
5. We fully agree with the submissions by the learned advocate. It was not opened to the Commissioner to confirm the entire demand of duty raised against the appellant for the extended period. The said show cause notice was adjudicated and the demand beyond the normal period was already dropped by the Commissioner. The dispute only related to the confirming demand of duty of Rs. 9.61 Lakhs (Approximately). It was in the context of the said disputed amount that the matter was remanded by Tribunal to Commissioner for fresh adjudication. As such, the scope of the de novo proceedings before the Commissioner was limited only to the said amount. It was not open to him to adjudicate the entire demand raised in the show cause notice, especially when the earlier order of the Commissioner dropping the demand on the basis of limitation was accepted by the Revenue and no appeal was filed there again.
6. As such while fully agreeing with the above contention of the learned advocate and accepted his offer to deposit the amount of Rs. 9.61 Lakhs, we direct him to do so within a period of six weeks from today and report compliance on 10-8-2006. Pro-deposit of the balance amount of duty and entire amount of penalty imposed upon all the appellants is dispensed with and its recovery stayed during pendency of the appeal.
7. All the three stay petitions are disposed of in above manner.
(Pronounced in Court)