The main legal point established in the judgment is the requirement for a speaking order and consideration of the appeal on its merits, along with the relevance of the internationally accepted nomenclature under the Harmonised System of Nomenclature (H.S.N.) for resolving disputes related to tariff classification.

( 1 ) IN this writ petition the petitioner has prayed for quashing the order dated 12th April, 2002 passed by the Commissioner (Appeals), Customs and Central Excise, Ghaziabad in respect of the order dated 30th September, 2001 of Deputy Commissioner passed in Order-in-Original No. 36 of 2001 (Annexure No. 1) in so far it relates to the deposit of 50 per cent of the demand. It has been further prayed for erection to dispense with the requirement of pre-deposit of any amount under Section 35f of the Central Excise Act in short act and further direction to hear and decide the appeal of the petitioner on merits without imposing any pre-condition on pre-deposit of any amount under Section 35f of the Act.

( 2 ) HEARD Sri Bharat Ji Agrawal and Sri Tarun Agarwala, learned Counsel for the petitioner and sri Ajit Kumar Singh, learned Standing Counsel.

( 3 ) BY consent of the parties, the writ petition are decided at this stage under Proviso Second to rule II of Chapter XXII of Allahabad High Court Rules.

( 4 ) THE brief facts necessary for adjudication of the writ petition are that the petitioner is a company registered under the Companies Act, 1956 engaged in the manufacture of "complan and Glucon D" for which the basic ingredients as claimed by the petitioner are as below (a)Skimmed milk powder (b) Sugar (c) Vegetable oil containing permitted and oxidants (d)Malto-Dextrin Powder (e) Minerals (f) Vitamins (g) Flavours. From 1st October, 1994, the petitioner, had been paying Central Excise Duty and the petitioner filed a declaration under Rule 173b of the Central Excise Rules, 1944 called rules hereinafter, claiming classifications of complan under Heading 2107. 91 of the Tariff approved by the Central Excise Department however, the classification was changed subsequently to 2108. 99 of the Tariff.

( 5 ) A show cause notice dated 29th November, 2000 was issued to the petitioner by the superintendent, Central Excise Range, Aligarh wherein proposing to classify complan under heading 1901. 92 of the Tariff and demanding differential Central Excise Duty for the month of november, 1999. The show cause emphasised that the product "complan" contains malto dextrin and to be treated as a food preparation containing malt extract contemplated imposition of penalty under Rule 173q of the rules and interest read with Section 11aa of the Act. An another show cause notice dated 21st December, 2000 identical to the earlier one was also issued for the period December, 1999 to February, 2000. The petitioner filed replies to the notice (Annexure 6 to the petition) contending that the composition of the complan specifically shows that it contains no malt or malt extract. The product contains substantial quantity of malto-Dextrine which is different from malt or malt extract and, therefore, the classification of the product under Heading 1901. 92 is illegal and cannot be sustained. In support of his contention the petition filed an authoritative clarification opinion dated 23rd February, 2001 given by the Central Food Technological Research Institute, Mysore defining and differentiating malt and Malto Dextrin and opinion dated 15th January, 2001 given by the Head of Food and fermentation Technology of University of Mumbai, Department of Chemical Technology,

( 6 ) THE Deputy Commissioner, Central Excise, Aligarh by its order dated 20th September, 2001 passed in 36-DEM 2001 order-in-original treated the product Complan is classifiable under heading 1901. 92 of the Tariff and making the petition is liable to pay the differential demand of central Excise Duty amounting to Rs. 3,94,29. 312. 00 and a similar amount of penalty under rule 173q of Central Excise Rules and to pay interest as per Section 11aa of the act. Being aggrieved the petitioner filed memo of appeal on 23rd November, 2001 under Section 35 of the act along with an application under Section 35f of act with prayer to waive dispense the requirement of the pre-deposit of the demand and