HARISH TANDON, J. - (1.) ASSAILING an order passed under Section 35 F of the Central Excise Act by the Custom Excise and Service Tax Appellate Tribunal (CESTAT), by which an application seeking waiver of predeposit condition, the instant writ petition is filed before this Court under Article 226 of the Constitution of India.
(2.) THE Company manufactures M/s Ingot & rolled products classifiable under Chapter No. 72 of the first schedule to the Central Excise Act, 1985 since 1975. A show -cause notice dated 2nd March, 2007 was issued to the petitioner alleging the suppression of the actual production figures of M/s Ingots for the period 2001 -2002 to 2005 -2006 being not incommensurate with the pattern of consumption of the electricity. A further show -cause notice dated 03.05.2007 was issued on the identical ground covering the period from April 2006 to February 2007. The petitioner replied the respective show -cause notices and denied the allegation of suppression of actual production figures and annexed certain documents in support of the defence. The adjudicating officer confirmed the demand of duty and imposed penalty and interest. The said order is carried in two separate appeals before the CESTAT. In the said appeal, two separate applications were filed for waiver of the pre -condition deposit under Section 35 F of the said Act. The CESTAT set aside the orders in original passed by the adjudicating authority and remanded the matter for fresh considerations in the light of the decisions rendered in case of Bharat Ingots & Steel Comp; Pvt Ltd. & Ors; delivered on 10th December, 2008. The proceeding was reconsidered on remand and a duty was imposed upon the petitioner for alleged suppression of the production figures taking into consideration the report submitted by Dr. Batra of IIT Kanpur. The said order is again challenged before the CESTAT and the application for waiver of pre -condition deposit filed therein is disposed of by the impugned order directing the petitioner to deposit 25% of the demand duty which is challenged in this writ petition. The main thrust of the argument before this Court by the petitioner is that the decision is solely based on the report of Dr. Batra of IIT Kanpur which is perverse and liable to be quashed and set aside. It is further submitted that there was another report of the technical expert filed by the petitioner which was not taken note of and the CESTAT wrongly recorded that no other report of a technical expert is available in the proceedings. The petitioner submits that it is a consistent view of the various tribunals that the decisions solely based on the disparity in consumption of electricity is not proper.
(3.) IN support of the aforesaid contentions, the reliance is placed upon the judgment of the Tribunal at Delhi in case of R.A Castings Pvt; Ltd. -vs - Commissioner of Central Excise, Meerut reported in 2009 (237) ELT 674(Tri -Del.) which is affirmed by Allahabad High Court in case of Commissioner of Central Excise, Meerut -I -vs - R.A. Castings Pvt; Ltd reported in 2011 (269) ELT 337(ALL.). It is further submitted that the Apex Court also dismissed the special writ petition and, therefore, the decision rendered in R.A. Castings Pvt. Ltd;(supra) attains finality. The petitioner further submits that in absence of any other aterial namely the procurement of excess raw material, conversion into a final product and clandestine clearance to the buyers, the decisions based on the disparity in the consumption of electricity cannot be sustained. It is audaciously submitted that when an interpretation is given by the High Court, Supreme Court or Tribunal, the another bench of the Tribunal cannot take a contrary view and should have allowed the total waiver. In support of the above contentions, reliance is placed upon a judgment of the Tribunal at Bangalore in case of South India Research Institute -vs - Commissioner of Central Excise, Guntur reported in 2004 (165) ELT 347 (Tri -Bang), Himtaj Ayurvedic Udyog Kendra -vs - Commissioner of Central Excise, Allahabad reported in 2001 (135) ELT 931 (Tribunal -Delhi) and Maharashtra Seamless Ltd. -vs - Commissioner of Central Excise, Raigad reported in 2012 (286) ELT 93 (Tribunal - Mumbai).;