2012 (12) TMI 48 - HC - Central Excise

Writ petition against the stay order directed the assessee to depsoit 50% of demand - section 35F - held that - In the present case, merely because the appellate authority has for one period taken a view in favour of the assessee, it cannot be binding on the Commissioner as prima facie case for grant of stay, as it is evident from the narration of facts that in respect of two different periods, the issue is before the Appellate Tribunal, one appeal by the assessee petitioner and the other by the Department. The original authority on two instances has held against the petitioner assessee. It is to be noted that exemption is not a matter of right. The petitioner assessee has to satisfy the conditions of the Notification and that is denied by the Department on more than one occasion by adjudicating on facts and in law. The issue is still at large before the Appellate Tribunal. This court finds that the order under challenge is neither unreasonable nor it would cause undue hardship on the petitioner. Therefore, the order under challenge is a balanced order taking note of the assessee s claim as well as the interest of the Department and it is in accordance with Section 35F of the Central Excise Act. - writ petition dismissed - decided against assessee.

Issues Involved:
1. Challenge to the interim order passed by the Commissioner of Central Excise (Appeals).
2. Entitlement to exemption from excise duty under Notification No.6/2006-Central Excise.
3. Requirement of pre-deposit under Section 35F of the Central Excise Act, 1944.
4. Consideration of undue hardship in granting stay of duty demanded.

Detailed Analysis:

1. Challenge to the Interim Order Passed by the Commissioner of Central Excise (Appeals):
The petitioner challenged the interim order dated 06.11.2012, which directed the petitioner to deposit 50% of the confirmed Central Excise duty as a pre-condition for stay of the demand. The petitioner sought to quash this order and requested the disposal of their appeal without insisting on any pre-deposit of duty.

2. Entitlement to Exemption from Excise Duty under Notification No.6/2006-Central Excise:
The petitioner, engaged in manufacturing boilers using unconventional sources of fuel, claimed exemption under Serial No.84 of Notification 6/2006-Central Excise. The second respondent had previously denied this exemption for the period April 2009 to March 2010, stating that the goods were not designed for operating on Agricultural and Municipal Waste Conversion Device Producing Energy. The petitioner argued that the Commissioner of Central Excise (Appeals) had earlier granted them the benefit of this exemption for a different period (7.4.2008 to 31.3.2009).

3. Requirement of Pre-Deposit under Section 35F of the Central Excise Act, 1944:
Section 35F mandates the deposit of duty demanded or penalty levied pending appeal unless it causes undue hardship. The Commissioner of Central Excise (Appeals) found no documentary evidence from the petitioner to prove undue hardship and thus ordered a pre-deposit of 50% of the duty confirmed. The court noted that the appellate authority must consider undue hardship and safeguard the revenue's interest.

4. Consideration of Undue Hardship in Granting Stay of Duty Demanded:
The court emphasized that exemption is not a matter of right and must be substantiated by the petitioner. The appellate authority had to balance the petitioner's claim of undue hardship against the revenue's interest. The court found the order for a 50% pre-deposit reasonable and in accordance with Section 35F, given the ongoing disputes and appeals between the petitioner and the Department.

Conclusion:
The court dismissed the writ petition, finding no reason to interfere with the conditional order of the Commissioner of Central Excise (Appeals). The order was deemed balanced and neither unreasonable nor causing undue hardship to the petitioner. The court granted the petitioner two weeks to comply with the pre-deposit requirement.

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