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Judgment
Harish Tandon, J.—In this writ petition the petitioner has assailed the order dated 12th December, 2013, passed by Customs, Excise & Service Tax Appellate Tribunal East Zonal Branch, Kolkata whereby and whereunder an application, seeking waiver of pre-deposit of duty, is disposed of by directing the petitioner to pay 25% of the duty. The petitioner contends that the order, passed by the assessing officer, was solely based on the consumption of electricity. 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.
It is further submitted that the earlier decision of the Tribunal should be respected and or adhered to and once the proposition, laid down in an earlier decision, is accepted, a different stand cannot be taken; unless the matter is either referred to larger quorum or before the higher forum.
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.
This Court finds that a prima facie case has been made out for an interim order.
There shall be an interim order restraining the respondent No. 2 from dismissing the appeal, u/s 35B of Central Excise Act, 1944, for a period of eight weeks from date or until further order whichever is earlier.
The writ petitioner is directed to communicate this order to the non-appearing respondents and shall file affidavit-of-service on the returnable date. Let this matter be listed in the supplementary list under the heading ''For Orders'' two weeks hence.