2015 (8) TMI 1002 - HC - Central Excise

Waiver of pre deposit - Valuation - Related person - Mutuality of interest - Held that - Prima facie, order that the Commissioner has not founded the order only upon the circumstance that 50% of the share holding in the Appellant is held by L & T Limited. The order of the Commissioner indicates that several other circumstances of a factual nature have been relied upon including among them the fact that L & T Limited bears the salaries and other expenses of officers and directors of the Appellant, that under the selling agency agreement it has been stipulated that the products of the Appellant are obliged to be sold by L & T Limited at such price as it may fix and that L & T shall endeavour to foster the interests and trade of the Appellant and will not directly or indirectly be concerned or engaged in any business of the same nature as that of the Appellant. In effect, L & T Limited is a sole selling agent of the Appellant. Until 1 July 2006, as a matter of fact, the Appellant was paying the duty of central excise on the selling price of L & T Limited. - The Tribunal has observed that the submissions addressed by the Appellant would require consideration. This is indicative of the fact that the matter requires deliberation. - Therefore, while a complete waiver is not warranted, in order to protect the interests of the Revenue, yet the quantum of deposit should be commensurate with an over all assessment of a prima facie case. - Pre deposit amount reduced - Time to make pre deposit extended - Decided partly in favour of assessee.

Summary

Issues:
1. Appeal under section 35(G) of the Central Excise Act, 1944 arising from an order of The Customs, Excise and Service Tax Appellate Tribunal.
2. Dispute regarding duty demand and waiver of pre-deposit.
3. Interpretation of Section 4(3)(b) of the Central Excise Act, 1944 concerning interconnected undertakings.
4. Application of legal precedents Alembic Glass Industries Limited Vs. Collector of Central Excise and Customs and C.C.E.Surat Vs. Besta Cosmetics Limited.
5. Assessment of mutuality of interest between two companies.
6. Justification of the pre-deposit amount directed by the Tribunal.

Analysis:

1. The appeal before the High Court stemmed from an order of The Customs, Excise and Service Tax Appellate Tribunal concerning a duty demand and waiver of pre-deposit under the Central Excise Act, 1944.

2. The dispute revolved around two show cause notices issued by the Commissioner of Central Excise, demanding duty payments for specific periods. The Tribunal directed the appellant to deposit a certain amount within a stipulated time frame, pending the final appeal resolution.

3. The central issue pertained to whether the two entities involved could be considered as interconnected undertakings under Section 4(3)(b) of the Act. The Commissioner concluded that there was a mutuality of interest between the appellant and another company, impacting the duty liability assessment.

4. Legal precedents, including judgments in Alembic Glass Industries Limited and C.C.E.Surat, were cited to argue against the interconnected undertakings status based solely on shareholding or common directors.

5. The High Court analyzed the factual circumstances, such as financial arrangements and business relationships, to determine the existence of a mutual interest between the appellant and the other company. The Tribunal's decision to order a pre-deposit was based on the need for further examination of the debatable issues during the appeal hearing.

6. Ultimately, the High Court modified the pre-deposit amount, reducing it from 50% to 25% of the total duty demand. This adjustment aimed to balance the interests of the Revenue while ensuring a fair assessment of the prima facie case, without warranting a complete waiver.

7. The Court clarified that its observations were specific to the appeal's disposal and should not prejudice the Tribunal's consideration of all submissions on merits during the final hearing.