1990 (2) TMI 209 - AT - Central Excise

Summary

Issues:
Stay petitions seeking stay of recovery of duty demanded by authorities, includibility of testing charges in assessable value, time-barred demands, undue hardship, departmental clarification on testing charges, suppression of facts, grant of stay, transfer of appeals to Special Bench.

Includibility of Testing Charges in Assessable Value:
The appellants contended that the testing charges paid by customers to the inspection agency should not be included in the assessable value of goods supplied. They argued that the goods had reached the fully manufactured stage before testing, and the charges were for meeting customer requirements, not manufacturing needs. The Department argued that testing charges are part of the cost of manufacture and should be included. The Tribunal found the issue debatable, noting a lack of clarity in a Trade Notice on the matter. Ultimately, the Tribunal acknowledged the appellants' arguable case and granted the stay.

Time-Barred Demands:
The appellants argued that demands were time-barred, with one demand issued in 1989 long after the six-month period had expired. They pointed out that the Department was aware of the issue earlier due to an audit report. The Department contended that part of the demand fell within the six-month period. The Tribunal considered the time-bar issue, noting that the appellants had contested the Department's stand on testing charges' includibility. The Tribunal granted the stay, considering the prima facie merits of the case.

Undue Hardship and Suppression of Facts:
The appellants argued that paying additional duty at this stage would cause hardship as they had already paid what they believed was correct and recovered it from customers. The Department contended that there was suppression as the testing charges were not disclosed. The Tribunal found the appellants had not proven undue hardship but acknowledged their prima facie strong case on the testing charges issue. The stay was granted based on the merits of the case.

Grant of Stay and Transfer of Appeals:
The appellants requested a stay and waiver of the duty demanded during the appeal's pendency. They also asked for the appeals to be transferred to the Special Bench in Delhi for disposal. The Department opposed the stay. The Tribunal granted the stay and directed the transfer of both appeals to the CEGAT, New Delhi, for disposal by the Special Bench in accordance with the law.