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TMI Blog1998 (1) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944 and demand of Rs. 1,29,441/- under the Automobile Cess Rule, 1984 and imposing penalty of Rs. 1 Crore under Rule 173Q of the Central Excise Rules, 1944 for contravention of Section 4 of the Act and Rules 173C and F of the Rules, the appellant has filed this application seeking waiver of the requirement of pre-deposit under Section 35F of the Act. We have heard both sides. 2. The dispute in the appeal relates to Scooters cleared by the appellant to depots and stockyards during the period 1-1-1991 to 31-12-1995 and sold from depots to wholesale dealers. Show cause notice dated 2-2-1996 was issued proposing demand on the ground that though there was an approved factory gate price for sale to wholesale dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s distinct from sales at the depots, what is involved is sales to a different class of buyers, that is, sales at the factory gate to one class of buyers and sales at the depots to another class of buyers, classification being based on sales at the factory gate which are confined admittedly to wholesale dealers of U.P. and J K, while sales at the depots are confined to wholesale dealers in the remaining regions of the country. Regional classification is something within the four corners of law. According to the DR the impugned order could be justified on the basis that dealers who buy at the factory gate and the dealers who buy at the depot fall into two different recognised classes. In which case, it is pointed out that different prices s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was suppression of material information with intent to evade duty. Shri R. Santhanam contended that existence of depots and sales through depots was all along known to the Department and clause (iv) of the second proviso to 173C of the Rules was not applicable to the appellant. According to this clause, declaration in such form and in such manner as prescribed by the Board shall be filed where the assessee removes the goods in any other manner which does not involve sale. It is pointed out that clearances at the factory gate to depots do not involve sale and therefore the clause is applicable. The Board has prescribed a proforma for declaration. If the declaration had been given all necessary particulars would have been brought to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation. We are prima facie unable to hold that audit department took up the matter but did not pursue it. In these circumstances it is not possible to arrive at a prima facie conclusion against the allegation made by the Department. 8. It appears that with effect from 1-4-1994 the appellant was mentioning in Invoices that depot operation charges at Rs. 175/- per Scooter will be charged at the depot on actuals as and when sales take place at the depot. It is contended that at least with effect from 1-4-1994 Department was aware of the stock transfer and collection of extra amounts at the depot. On this basis it appears prima facie that demand for the period 1-4-1994 to July 1995 would be barred. 9. We have indicated that the merits requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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