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TMI Blog2013 (9) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Oxygen Co. Ltd. v. CCE, Belgaum reported in 2007 (208) E.L.T. 181 (Tri.-Bang.). 2. In view of non-consideration of decision, the matter came back for reconsideration by Tribunal on the merit of the stay application. 3. Ld. Counsel appearing on behalf of the appellant submits that equity linked compensation received by appellant in terms of Article 9 read with Schedule 7 of the agreement between the appellant and the producer was intended to be taxed by Revenue for 3 years consequent upon failure to comply to the minimum requirement of purchase. The compensation paid by the buyer is not the price and not to form part of the transaction value of the appellant. But reverse is the proposition of the Revenue. It was also submitted on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication finding and the agreement throws light that equity price linked measure adopted by both sides for their defence is moot point shall be looked into elaborately in the cause for regular hearing. 8. Without prejudice to the grounds of appeal of the appellant and keeping the matter open for both sides to argue and also taking into consideration para 6 of the cited decision, we are unable to agree that the appellant has balance of convenience in its favour having been guided by the ratio laid down in the case of Empire Industries Ltd. v. Union of India reported in 1985 (20) E.L.T. 179 (S.C.). 9. Not being satisfied that the appellant has a case for total waiver of pre-deposit, we direct the appellant to suggest for partial waiver. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord for mention by Appellant in future. (Dictated & pronounced in the open Court) 12. [Per : Rakesh Kumar, Member (T)]. - I have gone through the order dictated by my ld. brother in the open court. While I fully agree with the conclusions of my ld. brother and the quantum of pre-deposit ordered by him, I am of the view that some other points which led us to this conclusion have to be emphasized, which is being done in this separate order recorded by me. 13. In this case, in terms of the appellant's agreement with their customer M/s. Eicher Motors Ltd. for supply of components of automobile cabins, M/s. Eicher are required to purchase from the Appellant at the contract price such quantity so as to ensure certain minimum Return on Equity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver based on the assured ROE and the actual sales turnover of Appellants' sales to M/s. Eicher is recovered from M/s. Eicher Motors as "operational compensation", which as mentioned above would translate into higher price for the goods being sold, as for the same quantity sold by the appellant to M/s. Eicher, they are realizing higher amount. Thus, this is a case of conditional price where the price is linked to the quantity of the goods purchased by M/s. Eicher, the contract price is for the quantity purchased by M/s. Eicher from the appellant which would ensure certain minimum ROE and if the quantum of purchase is less than that ensuring the minimum ROE to the appellant, the price would increase. This is clear from para 9.1 of the agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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