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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 ..... peal without insisting on pre-deposit. 4. The petitioner in this case is a company engaged in the manufacture of boilers of two kinds. The first kind of boiler is one which uses the conventional fuel, mineral oil. The second kind of boilers are thermic fluid heaters and steam boilers. The second kind of boilers use unconventional sources of fuel, namely, waste materials such as agricultural, forestry, agro-industrial and industrial wastes. Insofar as the second type of boilers are concerned petitioner claims exemption from payment of excise duty in terms of Serial No.84 of Notification 6/2006-Central Excise read with Serial No.16 of List No.5 appended to the said Notification. The interim order passed in the said stay petition relates to the period April, 2009 to March, 2010. The Order-in-Original No.49/2011 dated 31.3.2011 was passed by the second respondent and he declined to grant the benefit of the exemption sought for and the order reads as follows:- "22.0 From the above it is clear that the impugned goods are devices to carry heat energy to various process points and not designed for operating on Agricultural and Municipal Waste Conversion Device Producing Ene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty availing the ineligible exemption. 10. Moreover, the Appellants also had not made out any case, with documentary evidence in the stay petition, as to how the pre-deposit of the amounts in pursuance of the impugned order would cause undue hardship to them. Mere plea of undue hardship would not rescue them from the statutory obligation under Section 35F of CEA. 11. In view of the foregoing facts and circumstances keeping the interest of revenue & balance of convenience, I grant stay subject to payment of 50% of the Central Excise duty confirmed in the impugned OIA as pre-deposit, the pre-deposit of balance dues, is dispensed with under Section 35F of CEA. 12. Subject to complying with the above direction, the Appellants are given an opportunity of being heard in person (personal hearing) on 06.12.2012 at 13.00 hrs, in respect of the main appeal." 6. The above order dated 6.11.2012 is under challenge, primarily on the ground that there is a prima facie case in favour of the petitioner, inasmuch as the first respondent Commissioner of Central Excise (Appeals) has passed final order in Appeal No.15/2010(M.II) dated 9.2.2010 in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Central Excise (Appeals) in one case, namely, Appeal No.13/2012(M-II) dated 16.2.2012 which is in favour of the assessee. On the other hand there is an appeal filed by the very same assessee to the CESTAT in appeal No.E/95/2008 challenging the Commissioner of Central Excise (Appeals) order declining to grant the benefit. There is, therefore, contradiction in the orders as above. The issue is not resolved. 11. Two orders-in-original, namely, 66/2009 and 49/2011 have also been passed declining to grant the benefit of Notification No.6/2006-CE dated 1.3.2006. Insofar as the order-in-Appeal No.13/2012(M-II) dated 16.2.2012 passed by the first respondent is concerned, it favours the assessee petitioner and the Department has filed appeal No.E/263/2012 before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). Therefore, it is clear that both the assessee and the Department are before the Tribunal on the merits of the case. 12. In this background of the case, the authority has considered the plea of pre-deposit in terms of Section 35F of the Central Excise Act, 1944. Section 35F of the Central Excise Act, 1944 reads as follows:- SECTION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. Such being the factual matrix of the case, taking note of the proviso to Section 35F of the Central Excise Act, 1944, the authority, while considering the prima facie case, undue hardship of the assessee, is also entitled to safeguard the interest of the revenue. Therefore, ongoing through the order passed by the Commissioner of Central Excise (Appeals) in the stay petition, this court is unable to find any good reason to interfere with the conditional order passed granting stay subject to payment of 50% of the Central Excise Duty confirmed in the impugned Order-in-Appeal as pre-deposit. This court finds that the order under challenge is neither unreasonable nor it would cause undue hardship on the petitioner. The Department as well as the assessee are hotly contesting the matter before the Appellate Tribunal on the merits of the exemption sought for by the petitioner assessee. Therefore, the order under challenge is a balanced order taking note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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