1990 (11) TMI 147 - HC - Central Excise

Summary

Issues Involved:
1. Requirement of pre-deposit for hearing appeals before the Collector (Appeals).
2. Assessable value determination for retail sales versus wholesale sales.
3. Legality and correctness of the demand order issued by the Superintendent.
4. Prima facie case and balance of convenience for granting stay of impugned orders.

Detailed Analysis:

1. Requirement of Pre-Deposit for Hearing Appeals:
The petitioners challenged the Assistant Collector's orders dated 28-11-1989 and 30-11-1989, which required a pre-deposit of the impugned demand as a condition precedent for hearing appeals before the Collector (Appeals). They argued that respondent No. 2 (Collector of Central Excise) was not willing to hear the stay applications or appeals, and respondent No. 3 (Assistant Collector of Central Excise, Ghaziabad) was pressing for immediate payment. The court issued a show cause notice limited to why the application for stay under Section 35F of the Act should not be disposed of. The Collector (Appeals) dismissed the stay applications, stating that the appellants did not produce evidence of undue hardship and that the waiver of pre-deposit would be prejudicial to public interest.

2. Assessable Value Determination:
The petitioners contended that the ex-factory wholesale price should be applicable to all clearances, including retail sales. The Assistant Collector's order for the period from 7-1-1988 to 10-9-1989 required a separate price list for wholesale sales in UP State, which the petitioners argued was incorrect. They maintained that the ex-factory price should be the assessable value for all sales, whether wholesale or retail.

3. Legality and Correctness of the Demand Order:
The Superintendent issued a demand order for Rs. 69,59,353.29, alleging duty short paid for the period August 1987 to October 1989. The petitioners filed appeals and stay applications, arguing that the demand was neither legally tenable nor factually correct. The court noted that the Collector (Appeals) directed the Assistant Collector to recheck the calculation of the demand.

4. Prima Facie Case and Balance of Convenience:
The petitioners argued that they had a prima facie case and that the balance of convenience lay in their favor. They cited a 3-Member Bench decision of the Central Excise and Gold (Control) Appellate Tribunal, which held that the normal price under Section 4(1)(a) should be the assessable value for all sales. The court found that the Collector (Appeals) erred by not considering this relevant order and focusing solely on the financial element. The court concluded that the balance of convenience favored the petitioners, as they were clearing motorcycles on furnishing a bank guarantee for the differential duty.

Conclusion:
The court allowed the petition, quashed the impugned orders of the Collector (Appeals) dated 1-6-1990, and confirmed the interim stay orders. The respondent No. 2 was directed to dispose of the petitioners' appeals within two months without requiring any pre-deposit. No costs were awarded.