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TMI Blog2012 (12) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. - Writ Petition No.30853 of 2012 and M.P.No.1 of 2012 - - - Dated:- 21-11-2012 - MR. R. SUDHAKAR J. For Petitioner: Mr. Hari Radhakrishnan For Respondent: Mr. Vikram Ramakrishnan, (Customs and Central Excise ----- O R D E R This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus and call for the records pertaining to the impugned order-in-stay petition No.11/2012 (M-II) dated 06.11.2012 in A.No.51/2011 (M-II) passed by the first respondent and quash the same and to direct the first respondent to dispose of the petitioner's appeal No.51/2011 (M-II) without insisting on any pre-deposit of duty. 2. Mr. Vikram Ramakrishnan, learned counsel appearing for the Customs and Central Excise, takes notice for the respondents. 3. The Writ Petition has been filed challenging the interim order passed by the first respondent Commissioner of Central Excise (Appeals), to quash the same and to direct the first respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,150/- (CENVAT) + Rs.30,003/- (Edn. CESS) + Rs.15,002/- (SHE CESS), payable on the value of the clearances made during the period April 2009 to March 2010 under Section 11 A of the Central Excise Act, 1944; b) I order recovery of appropriate interest on the above amount under Section 11 AB of the Central Excise Act, 1944; and c) I impose a penalty of Rs.2,000/- (Rupees Two Thousand only) under Rule 25 of the Central Excise Rules, 2002." 5. Against the above order dated 31.3.2011 an appeal has been filed along with application for stay and that application came to be disposed of by the first respondent Commissioner of Central Excise (Appeals) on 6.11.2012 by passing the following order: "9. On perusal of the impugned order, the stay petition filed by the Appellants, prima facie, it appears to me that there is a strong case in favour of the revenue, as the appellants had manufactured and cleared goods that are not eligible for exemption available under Sl.No.84 of Notification No.6/2006-CE dated 1.3.2006 as amended, since the fire wood could be used as a fuel for operating the boiler; and are liable to pay duty on the clearances of goods made without payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption as per Sl.No.84 of Notification No.6/2006-CE dated 1.3.2006 as amended, specified in Sl.No.16 of List No.5 for the period April 2008 to March 2009 was taken in Appeal No.13/2012 (M-II) before the first respondent and an order favourable to the petitioner was passed on 16.2.2012. That order of the Commissioner of Central Excise (Appeals) has been challenged by the Department before the Customs, Excise and Service Tax Appellate Tribunal, Chennai by way of appeal in Appeal No.E/263/12. 9. It is at this juncture that the order-in-original came to be passed for the subsequent period April 2009 to March 2010, the subject matter of the present proceedings. The revenue declined to grant the benefit of exemption as per Notification No.6/2006-CE dated 1.3.2006 and ordered recovery of Rs.15,45,155/- being the Central Excise Duty, Education Cess and Secondary and Higher Education Cess payable on the value of the clearances made in terms of Section 11A of the Central Excise Act, 1944 together with interest. 10. Insofar as the stay petition is concerned, the prima facie plea of the petitioner is based on the order passed by the Commissioner of Central Excise (Appeals) in one c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim order that has to be passed. It has been held by the appellate authority that insofar as the undue hardship is concerned no material has been placed by the assessee petitioner, as to how it would cause undue hardship. The appellate authority relied upon the decision of the Andhra Pradesh High Court reported in 2011 (22) STR 135 (AP) (Commissioner of Central Excise, Guntur vs. - Sri Chaitanya Educational Committee) as to the parameters to be taken into consideration while passing interim orders in stay petition. There cannot be any dispute on that score. 15. 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. 16. It is to be noted that exemption is not a matter of right. The petitioner assessee has to satisfy the conditions of the Notification ..... 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