TMI Blog2012 (7) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... afeguard the interest of Revenue have to be kept in view. - E/813/11 - S/873/12/EB/C-II - Dated:- 6-6-2012 - S S Kang, Sahab Singh, JJ. For Respondent: Mr. V Sridharan, Sr. Counsel For Appellant: Mr. V K Agarwal, Additional Commissioner (A.R.) Per: S.S.Kang 1. The applicant filed this application for waiver of pre-deposit duty of Rs.3,11,27,740/-, interest and penalty. 2. The contention is that applicants are engaged in the manufacture of cars. Applicants are selling cars through dealers throughout the country. As per the Agreement the dealers were given fixed discount for selling cars of the appellant company and dealers have to provide Pre-Delivery Inspection (PDI) and two free services from such dealers' margin. The demand was confirmed on the ground that the charges in respect of PDI and free service charges are to be added to the transaction value of the cars in view of the provision of Section 4 of the Central Excise Act, 1944 and Rule 6 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. 3. The contention of the applicant is that the Agreement between the applicant and the dealers is on principal to principal basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd 1977 (1) ELT (J177); 6. Appellant also relied upon GATT Valuation Rules WCO advisory opinion in support of their claim. 7. The contention is that the adjudicating authority relied upon the decision of the Larger Bench of the Tribunal in Maruti Suzuki India Ltd vs CCE, Delhi III 2010 (257) ELT 226 (Tri-LB) . The Larger Bench decision of the Tribunal in Maruti Suzuki (supra) has not interpreted the law in the right perspective. 8. Appellant also relied upon the decision in the case of Mahindra Mahindra Ltd reported in 1999 (103) ELT 606 and dismissal of the appeal filed by the Revenue by the Hon'ble Supreme Court as reported in 1999 (111) ELT A 126 (SC) . The contention is that in this case the Tribunal held that the PDI and after sale service is done by the dealers and expenses incurred by the dealer cannot be added to the assessable value of the goods manufactured and sold by the manufacturer to the dealers. In support of this argument, applicant also relied upon the decision of the Tribunal in the case of Telco Ltd. vs CCE reported in 2000 (121) ELT 224 (Tri). 9. In view of the above, the contention of the applicant is that the appeal be heard without as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that any such amount is not limited to, any amount charged for .... The expression any has been used twice and on both the occasions, it refers to the amount payable by the buyer. The second time use of the word any is preceded by the expression but not limited to . The said expression clarifies the definition to be totally extensive in nature and not exhaustive as far as the items referred in the definition clause after the expression but not limited to . 20. Further perusal of definition of the term transaction Value does not disclose that the elements to be included in the assessable value would depend upon direct flow back of the consideration to the assessee. Such a conception shall defeat the spirit of amendment to the law. Even indirect benefit in that regard, wholly or partly, resulting from the payment made by the buyer to the dealer in connection with or by reason of the sale transaction will have to be included in the assessable value. Being so, any amount collected by the dealer towards pre-delivery inspection or after sale services from the, buyer of the goods under the understanding between the manufacturer and the dealer or forming part of the activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agent in respect of sale of the product to the buyers, and the terms and the conditions thereof, the transaction value arrived at would lead to the quantification of the assessable value of the product, which in turn will determine the duty liability of the manufacturer. In the scheme of the said Act, therefore, the concept of transaction value relates to the manufacturing cost inclusive of any other amount received or receivable directly or indirectly to make the product marketable. The manufacturing of a product and the marketability thereof are inbuilt elements of the scheme of assessable value under Section 4 of the said Act. 14. As we are dealing with application under Section 35F of the Central Excise Act, 1944 for waiver of pre-deposit of the dues during the pendency of the appeal. The provisions of Section 35F of the Act were considered by the Hon'ble Supreme Court in the case of Benara Valves Ltd vs CCE reported in 2006 (204) ELT 513 (SC) and Hon'ble SC held as under: 8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch person and safeguard the interests of revenue . Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35(F). One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors . (AIR 1994 SC 923) that under Indian conditions expression Undue hardship is normally related to economic hardship. Undue which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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