2012 (11) TMI 1026 - AT - Central Excise

Waiver of pre deposit - Board Circular No. 643/34/2002-CX, dated 1-7-2002 - Appellant was entitled to deduction of transportation charges from the place of removal to the place of delivery from the assesseable value and no deduction in respect of transportation charges for return journey was permissible - Held that - appellant has been able to make out a strong prima facie case for waiver of condition of pre-deposit. Accordingly, we allow the stay application and waive condition of pre-deposit of duty demand, interest and penalty and stay recovery thereof till disposal of the appeal - Following decision of M/s. Haldia Petroleum Corporation Ltd. v. C.C.E., Haldia 2006 (7) TMI 495 - CESTAT, BANGALORE - Stay granted.

Summary

Issues:
Application for waiver of pre-deposit of duty demand.

Analysis:
The appellant, a public sector undertaking, sought waiver of pre-deposit of duty demand amounting to Rs. 21,70,786/- along with interest and penalty. The dispute arose from the appellant charging buyers transportation charges on a round trip basis during a specific period. The Department contended that the appellant should have added the amount collected for the return journey to the assessable value, leading to a demand for differential excise duty. The Additional Commissioner confirmed this demand, which was challenged by the appellant through appeals.

The Commissioner (Appeals) rejected the appeal, prompting the appellant to file the current appeal seeking waiver of pre-deposit. The appellant argued that the Department was incorrectly including return fare charges in the assessable value, contrary to legal precedents and a clarificatory Circular issued by the Board. The appellant cited the Tribunal's decision in a similar case and the subsequent acceptance of that decision by the Board through Circular No. 923/13/2010-CX.

In response, the Revenue, represented by the ld. Jt. CDR, opposed the stay application, supporting the Commissioner (Appeals)'s decision. After considering the arguments from both sides and reviewing the relevant legal provisions and Circulars, the Tribunal, consisting of Ajit Bharihoke and Shri Rakesh Kumar, JJ., found merit in the appellant's contentions. The Tribunal acknowledged the strength of the prima facie case presented by the appellant, especially in light of the Tribunal's previous decision and the clarificatory Circular issued by the Board. Consequently, the Tribunal allowed the stay application, waiving the condition of pre-deposit of duty demand, interest, and penalty until the appeal is disposed of.

In conclusion, the Tribunal granted the stay application, allowing the appellant relief from the pre-deposit condition pending the final decision on the appeal. The case will be listed for further proceedings in due course.