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TMI Blog1990 (11) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ances made from the factory and, therefore, it is not permissible in law to determine the assessable value with regard to sales in retail on a different basis. In other words, the assessable value in respect of the sales made in retail would also be the same as the assessable value for sales made in wholesale ex factory. 2. As regards the subsequent period covered by the Asstt. Collector's order dated 30-11-1989, i.e. period from 7-1-1988 to 10-9-1989, holding that the normal wholesale price applicable for U.P. State should be the wholesale price charged from dealers of UP; which is in excess of declared wholesale price under Section 4(1)(a) of the Act, the party was directed to file a separate price list of wholesale price for sales in UP State. The further case of the petitioners is that w.e.f. 22-6-1988, they had made sales to UP dealers from their Ghaziabad depot after stock transfers from the factory at Delhi to its depot at Ghaziabad, and when the ex factory prices are available, the same should be taken as assessable value as against ex depot prices also. 3. In compliance of the aforesaid orders of the Asstt. Collector, the Superintendent issued a demand order for a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Camp, Lucknow) heard the two stay applications dated 26-3-1990 of the appellants u/s 35F of the Act praying for the waiver of the requirement of pre-deposit and stay of the impugned orders passed by the Asstt. Collector, Central Excise, Ghaziabad, and dismissed the same on 1-6-1990. Immediately, on the receipt of the impugned order dated 1-6-1990, the petitioners moved an application u/s 151 CPC seeking the issuance of directions in these words :- "To continue the interim stay orders granted by this Hon'ble Court, on 2-5-1990 and stay the operation of the impugned orders and in particular, stay the operation of the orders dated 28-11-1989, 30-11-1989 and 13-3-1990, demand notice dated 13-3-1990, order of deposit dated 22-3-1990 and to permit future clearances for direct sales to retailers ex factory available stock transfers to UP depot for sales to UP dealers, on the basis of the current price-list filed by the petitioner under provisional assessment as per Rule 9B of the Central Excise Rules, 1944, hereinafter referred to as the (Rules) upon the petitioner furnishing a bond in form B.13 and upon furnishing security to the satisfaction of the Asstt. Collector, respondent No. 3 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay could be considered. In the present case, the appellants have not produced any evidence that implementation of the impugned orders would result into undue hardship to them. Financial statements, balance sheets and other relevant documents have not been produced to convince that the impugned orders would affect their legality. In the case of Dunlop India Ltd. -1985 (19) E.L.T. 22 (SC), the Hon'ble Supreme Court has held that prima facie case by itself is not enough for consideration of grant of stay. The other relevant factors were, balance of convenience, the possibility of irreparable injury and safeguarding the public interest." 12. The Collector further observed that the appellant is a reputed Company operating in the organised section. The waiver of the condition of pre-deposit and grant of stay, sought for would be prejudicial to public interest. In this view of the matter, the appellants' request cannot be agreed to. While disallowing stay applications, the Collector directed the Asstt. Collector, Central Excise, Ghaziabad, to recheck whether the demand dated 13-3-1990 issued in pursuance of the orders dated 28-11-1990 and 30-11-90 respectively has been correctly calcula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the balance of convenience, over and above a mere prima facie case, calls for the waiver of pre-deposit, notwithstanding that financial hardship is not established or has not been pleaded." 14. In support of this proposition that the petitioners have a prima facie good case in their favour, learned counsel for the petitioner drew our attention to the order of 3-Member Bench of the Central Excise and Gold (Control) Appellate Tribunal dated 1-9-1988 passed in one of the appeals preferred by the Collector of Central Excise against the petitioners. In that order, it was held that so long as the genuine normal price u/s 4(1)(a) is ascertainable, the law does not permit resort to Section 4(1)(b) and the Valuation Rules, 1975 and all the goods whether sold to wholesale dealers, related persons, retail consumers or stock transferred to depots have to be assessed at the normal price only. The Tribunal further observed that since in approving the normal price in Para-I for sales to wholesale dealers, the lower authorities did not question the genuineness of the net price charged from the dealers and raised no point regarding any additional consideration, the controversy started in re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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