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TMI Blog2015 (5) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... nce amount of duty interest and penalty shall remain stayed, subject to the deposit, while deciding the stay application of the appellant. 3. The following four questions of law have been framed by the appellant for the decision by this Court: "(i) Whether in facts and circumstances of the present case, the Appellate Tribunal is correct in directing the Appellant to deposit Rs. 150 crore out of Rs. 240 crore (approx) demand as a precondition to hear the Appeal on merits when the entire case is covered in favour of the Appellant by rulings of the Hon'ble Supreme Court and the Bombay High Court? (ii) Whether in facts and circumstances of the present case the Appellate Tribunal is correct in directing the Appellant to make a pre-deposit as a pre-condition to hear the Appeal on merits when the entire case is covered by order of the Appellate Tribunal in Appellant's own case; thus, breaching the doctrine of judicial discipline and judicial propriety? (iii) Whether in facts and circumstances of the present case the Appellate Tribunal is correct in directing the Appellant to make a pre-deposit as a pre-condition to hear the Appeal on merits, when the Hon'ble Tribunal has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that whatever discounts were passed to the end consumers as the customers had bought the vehicles from the dealers and had got maximum savings and no loss had been incurred by the dealers. The discounts were advertised and known prior to the removal of the goods. Reliance was placed upon the judgment of the Apex Court in Union of India & others Vs. Bombay Tyres International Ltd. 1984 (17) ELT 329. The demand was denied and it was pleaded that the demand duty was barred under Section 11A of the Act. The balance-sheet and profit and loss accounts of the entire period of dispute had been shown and it was submitted that there was no suppression of facts and statements and that the investigation on the extended period of limitation was perverse and contrary to the facts and time-barred. 6. The adjudicating authority, vide order dated 10.01.2013 (Annexure A-9), by taking into account the defence of the appellants, came to the conclusion that the period relates to the evaluation of vehicles from June, 2004 to March, 2012. The provisions of Section 4(3)(d) of the Act were taken into consideration to hold that the discounts given by the dealers of the manufacturer would be includible in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the larger Bench of the Tribunal in Maruti Suzuki India Ltd. Vs. CCE, Delhi-III 2010 (257) ELT wherein it had been held that the provision of running pre-delivery inspection and three free after sale services were also part of the price of goods. The judgment of the Bombay High Court in Tata Motors Ltd. Vs. UOI 2012 (286) ELT 161 (Bom.), was referred to but not taken into consideration on the ground that the appellant would be provided opportunity to argue on its ratio during regular hearing. Other judgments relied upon were rejected on the ground that the transaction value came into force w.e.f. 01.07.2000 and the judgments were prior to that point of time. 8. Another factor which weighed with the Tribunal was that the dealers were also charging handling charges, over and above the ex-showroom price and the manufacturer had no control over the dealers in this regard. Thus, the handling charges were being recovered by the dealers which range from Rs. 6000/- per vehicle and thus, had been suppressed from the Department and therefore, the extended period of limitation had rightly been invoked. The discount was being compensated from handling charges, collected by the dealers, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." 12. The facts have already been noticed in detail above. The Tribunal, prima facie, after taking into account the fact that in view of the provisions of Section 4(3)(d), has come to the conclusion that the transaction value means the price paid or payable for the goods once sold. The same has been held to be inclusive of the amount charged, which the buyer of the vehicle is liable to pay, in connection with the sale and whether the same is payable at the time of the sale regarding advertisement marketting and selling expenses. The factum of the issue being decided against the assessee itself by the larger Bench of the Tribunal in Maruti Suzuki India Ltd. (supra), is also not disputed wherein the point taken into consideration was whether the charges incurred towards pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the Revenue, pertaining to the cost of the pre-delivery inspection and free further sales service incurred which had been included in the assessable value. The Court came to the conclusion that the circulars issued by making reference to Rule 6 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, had wrongly been invoked and linked with the expenses of publicity. Clause 7 of the circular dated 01.07.2000 was, accordingly, held to be not in conformity with the provisions of Section 4(3)(d) and accordingly, held to be illegal and void. That the pre-delivery inspection and free further sales service charges could be included in the transaction value only when they are charged by the assessee from the buyer and thus, it was held to be a question of fact. It was also noticed that the adjudication order was not under challenge and whether the adjudicating authority was justified, would be decided in appeal. In the present case, there is no circular, as such, which is subject matter of challenge and the demand has been raised on the basis of the provision itself and therefore, reference to the said judgment is without any basis. 15. Once the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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