9911796707
TMI Blog1993 (3) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned SDR has appeared on behalf of the applicant. She pleaded that M/s. Ferro Alloys Corporation, the respondent had entered into an agreement dated 12th November, 1988 with M/s. MAN B W Diesel GMBH, West Germany for the sale and supply of 3 DG sets 10 MW each for setting up 30 MW captive power plant at their factory at Shreeramnagar. She pleaded that besides determining the assessable value for the purposes of assessment, the value of the instructions documents, drawings and design materials is to be included in the assessable value. She relied on para 4.1 of the agreement entered into by the respondent with the supplier which appears on page 55 of the paper book and para B which appears on page 56 of the paper book. She also refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further stated that the financial position of the respondent is very sound and they are paying duty to the tune of about Rs. 12 crores aunually only for this unit and there are other units also and the annual turnover is about Rs. 147 crores and there is no danger to the revenue and the stay application filed by the revenue needs to be dismissed. The turnover of Rs. 147 crores is for a period of six months. He pleaded for the rejection of the stay application. 3. We have heard both the sides and have gone through the facts and circumstances of the case. For the proper appreciation of the legal provisions, Section 129E of the Customs Act, 1962 is reproduced below :- Section 129E. Deposit, pending appeal, of duty demanded or penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Customs, Visakhapatnam. The order passed by the Assistant Collector has been set aside by the Collector (Appeals) and as such, the order gets merged in the order passed by the Collector (Appeals), and in terms of the order passed by the Collector (Appeals), there is no demand. During the course of arguments, Shri Bagaria, the learned advocate further pleaded that the respondent had not deposited the amount and as such, there is no entitlement to the refund. We are also: told that the financial position of the respondent is very sound and turnover of the Resspondent is Rs. 147 crores for six months and only this unit of the respondent is paying about Rs. 12 crores annually. We would also like to observe that the statute does not give a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the respondent has not paid any amount. We are of the view that the facts and circumstances of the case do not justify the exercise of inherent power too in this case. In view of the above observations, we are of the view that the stay application filed by the revenue is not maintainable and as such, we are not touching the merits of the stay application, which were argued by the learned Departmental Representative. Shri Bagaria, the learned advocate during the course of arguments had also mentioned that there is substantial case law on the subject in favour of the respondent. Since we are rejecting the stay application on the preliminary ground of maintainability, we are not touching me merits of the matter advanced by both the sides. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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