2014 (9) TMI 405 - HC - Central Excise

Waiver of pre-deposit of duty - clandestine removal - Order based on consumption of electricity - absence of corroborating and supportive evidence - Held that - Several decisions, passed by the Tribunal as well as different High Courts on such issue, were brought to the notice of the Tribunal wherefrom it could be deciphered that consumption of electricity alone cannot be a sole determining factor in absence of any other corroborating and supportive evidence. On perusal of the judgments, rendered on the aforesaid issue and annexed to this writ petition, this Court finds there are divergent opinions on the above issue and, therefore, this Court feels that the matter is required to be heard for the purpose of settling an issue, which is still unsettled - prima facie case has been made out for an interim order - Respondent restrained from dismissing appeal - stay granted - Decided in favour of assessee.

Summary

Issues:
Challenge to order of Customs, Excise & Service Tax Appellate Tribunal regarding waiver of pre-deposit of duty based on consumption of electricity; Contention on the necessity of corroborating evidence; Respect for earlier Tribunal decisions; Settlement of divergent opinions through Court hearing; Granting of interim order to restrain dismissal of appeal under Section 35B of Central Excise Act, 1944.

Analysis:
The petitioner challenged the order of the Customs, Excise & Service Tax Appellate Tribunal, which directed payment of 25% duty based on electricity consumption alone. The petitioner argued that such a decision must be supported by corroborating evidence, citing various Tribunal and High Court decisions on the matter. The petitioner emphasized the importance of respecting earlier Tribunal decisions unless referred to a larger quorum or higher forum. The High Court noted divergent opinions on the issue and decided to settle the matter through a hearing.

The High Court found a prima facie case for an interim order and directed to restrain the respondent from dismissing the appeal under Section 35B of the Central Excise Act, 1944 for eight weeks or until further order. The petitioner was instructed to inform non-appearing respondents and file an affidavit-of-service. The Court scheduled the matter for a supplementary list under 'For Orders' in two weeks, indicating the intention to resolve the unsettled issue through a formal hearing process.