9911796707
TMI Blog2011 (2) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... quivalent amount of penalty under Section 11AC of the Central Excise Act, 1944. 2. Heard both sides and perused the records. 3. The above referred amount has been confirmed by the adjudicating authority on the ground that the appellant is liable to pay the differential duty as they have availed the benefit of pre-payment of the amount of deferred sales taxes as per the provisions of Maharashtra Sales Tax Act, 1959. 4. The learned Counsel appearing on behalf of the applicant drew our attention to the order-in-original. It is her submission that an amendment was brought to Bombay Sales Tax Act, 1959, wherein the appellant were permitted to discharge the entire sales tax liability, which was deferred for a particular period, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clarification given by the Board that as per definition of "transaction value" taxes are deductible only on actual basis either paid or payable by the assessee. It is his submission that in these cases the assessee is not paid the balance amount of sales tax collected by him from the customer which would they are liable to be included in the transaction value. It is also his submission that the orders and Judgment of the Tribunal in the following cases (a) Bharat Roll Industry (Pvt.) Ltd. v. CCE, Haldia - 2008 (229) E.L.T. 107 (T). (b) Eastern Setcrete Pvt. Ltd. v. CCE, Haldia - 2008 (231) E.L.T. 179 (Tri.). (c) Modipon Fibre Co. v. CCE, Meerut - 2007 (218) E.L.T. 8 (S.C.). (d)&n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that it is not in dispute that the amount on which the Revenue wants to collect excise duty is a sales tax collected by the appellant from their customers. It is also not in dispute the amount that has been collected were to be paid to the Government of Maharashtra in a deferred payment of scheme. It is also not in dispute that to the deferred payment scheme, an amendment was introduced to the provisions to Section 38(4) of the Bombay Sales Tax Act, 1959 which permitted an assessee to discharge the entire sales tax liability under the deferred payment scheme. We find that the said amendment to Section 38(4) reads as under :- "Provided also that, notwithstanding anything to the contrary contained in the Act or in the rules or in any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry the case of revenue any further, as the facts in that case were different than the facts in this case. It is also to record that the apex court in the judgemnt of Benara Valves Ltd. (supra), at paragraph 8 has given clear directions to the lower courts while disposing the stay petition. We find that the said directions, if applied in the case before us, a conclusion can be reached that prima facie the demands confirmed have no legs to stand. In an identical situation, Co-ordinate Benches have been granting unconditional stay. In view of the foregoing, we find that the appellant has made out a prima facie case for waiver of pre-deposit of duty, interest and penalty. Application for waiver of pre-deposit of amounts involved is allowed and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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