Judgment :- 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 respondent to dispose of the appeal 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 Energy. 23.0 From my findings discussed above I find no reason to deviate from views expressed by Commissioner (Appeals) and following judicial discipline, I hold that the assessee are not eligible for the exemption available under Sl.No.84 of Notification No.6/2006-CE dated 1.3.2006 as amended, specified in Sl.No.16 of List No.5 and are liable to pay duty on the clearances of thermic fluid heaters and Ag. stream boiler /Ag. Accessories / parts made without payment of duty availing the ineligible exemption. stream boiler /Ag. Accessories / parts made without payment of duty availing the ineligible exemption. 24.0 Inasmuch as they have contravened Rule 4, 6 & 8 of Central Excise Rules, 2002 as the goods were not self assessed for appropriate duty on clearances by misusing the Notification, which is not eligible to these goods, they are also liable for penalty under Rule 25 of Central Excise Rules, 2002. 25.0 Hence, I pass the following order. ORDER I disallow the benefits of Notification No.6/2006 CE dated 1.3.06 for the goods cleared without payment of duty during the period from April 2009 to March 2010; a) I confirm the demand of an amount of Rs.15,45,155/-(Rupees Fifteen Lakhs, Forty-five Thousand, One Hundred and Fifty-five only), [Rs.15,00,150/- (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 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. 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 petitioner assessee. In that order, the Commissioner of Central Excise (Appeals) holds that the assessee is entitled to the benefit of Notification No.6/2006-CE dated 1.3.2006. The said order relates to the period 7.4.2008 to 31.3.2009. 7. The present case has a past history which also needs to be taken into consideration for the purpose of considering the issue before this court. It is pointed out that for the period 2003-2004 an order-in-original came to be passed in Order No.50/2005 dated 29.11.2005 by the second respondent dropping the proceedings stating that the assessee is eligible for the exemption under Notification No.6/2002 dated 1.3.2002. It is also not in dispute that that order was reversed by the Commissioner of Central Excise (Appeals). A copy of the order has not been enclosed in the typedset of papers. However, reference is made in the Docket Stay Order passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai in E/95/08 by order dated 23.1.2009. This is an appeal filed by the assessee petitioner on 3.3.2008 against the order-in-Appeal No.42/2007 M2 dated 28.2.2007. 8. A copy of the order has not been enclosed in the typedset of papers. However, reference is made in the Docket Stay Order passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai in E/95/08 by order dated 23.1.2009. This is an appeal filed by the assessee petitioner on 3.3.2008 against the order-in-Appeal No.42/2007 M2 dated 28.2.2007. 8. The order-in-Original No.66/2009 passed by the second respondent declining to grant the benefit of exemption 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 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). 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 35F; Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.” 13. The primary duty of the appellate authority, while considering the claim on pre-deposit of duty demanded or penalty levied pending appeal, is to consider as to whether it would cause undue hardship to the person concerned and also to safeguard the interest of the revenue. 14. The Apex Court in the following decision has emphasized the nature of 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. 14. The Apex Court in the following decision has emphasized the nature of 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 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, on going 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. 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 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. 18. The decision of the Supreme Court in 2010(262) ELT 6(S.C.) Sant Lal Gupta – vs. - Modern Co-operative Group Housing Society Ltd., para 20 reads as follows:- “20. In the instant case, the position before us is worse as the latter bench has taken a divergent view from an earlier coordinate bench, particularly taking note of the earlier decision holding otherwise, without explaining why it could not follow the said precedent even while extensively quoting the same. Judicial propriety and discipline are not served by such conduct on the part of the division bench.” 19. The above decision relied upon by the petitioner's counsel may not apply to the present case, as the earlier order of the Commissioner of Central Excise (Appeals) is challenged by the Department and still pending before the Appellate Tribunal. Therefore, at the stage of considering the pre-deposit, the relevance of the order passed by the Commissioner of Central Excise (Appeals) for the earlier period may not be relevant or appropriate. If the Appellate Tribunal has already passed an order with regard to the earlier period as above, then it is different issue altogether. It is not the case on hand. The order under challenge passed by the Commissioner of Central Excise (Appeals) in the stay petition has considered all relevant issues on merits. There is no scope for interference. 20. In view of the above, the writ petition fails and the same is dismissed. The counsel for the petitioner seeks further time to comply with the order passed by the Commissioner of Central Excise (Appeals). Accordingly, two weeks time is granted from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.