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TMI Blog2012 (7) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant is that the Agreement between the applicant and the dealers is on principal to principal basis. Applicants are selling the cars to dealers at a contract price and also recommended to the dealers maximum sale price. The dealers cannot sell the cars on the price beyond the recommended maximum price. However, the dealers are at liberty to sell the cars at the price below the recommended maximum price. Applicants submitted that as per the definition of the "Transaction Value" as provided under Section 4 of the Central Excise Act, 1944 means the price actually paid or payable for the goods when sold and includes any amount that the buyer is liable to pay to, or on behalf of, the assessee including any amount charged for, or to make provision, advertising or publicity, marketing, servicing, warranty or any matter. The contention is that the transaction value includes any amount a buyer is liable to pay to the assessee or on behalf of assessee including any amount charged for advertising, publicity or servicing, warranty or any matter or any amount charged to make the provisions for these mentioned provisions. Any amount to be included in the transaction value must be amount c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the above, the contention of the applicant is that the appeal be heard without asking for any pre-deposit. 10. Applicant has not pleaded any financial hardships. 11. The Revenue relied upon the Board's Circular No. 643/34/2002-CX dated 01.07.2002 to submit that the Board has clarified in view of the provisions of Section 4 of the Central Excise Act that after sale charges and PDI are to be included in the assessable value of the vehicles. The Revenue relied upon the decision of the Larger Bench in the case of Commissioner vs Maruti Udyog Ltd supra and submitted that the issue involved in this appeal has already been decided by the Larger Bench of the Tribunal in favour of the Revenue. The appeal filed by M/s Maruti Udyog Ltd is pending in the Hon'ble Supreme Court and there is no stay granted by the Hon'ble Supreme Court. Hence as the issue is already covered, therefore, it is not a case for waiver of dues. 12. Revenue also relied upon the decision of the Hon'ble Supreme Court in Benara Valves Ltd vs Commissioner of Central Excise reported in 2006 (204) ELT 513 (SC). 13. We are dealing with the application filed under Section 35F of the Central Excise Act for waiver of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding between the manufacturer and the dealer or forming part of the activity of sale promotion of the goods would be a payment on behalf of the assessee to the dealer by the buyer, and hence, it would form part of the assessable value of such goods. Undoubtedly, such collection of charges by the dealer could also be to the advantage of the dealer to discharge post sales obligations/liability arose under contract of sale. However, that may involve a question of profit to the dealer and may be a subject matter of assessment for the purpose of direct taxes. However, in relation to the manufacturer, it would be an indirect consideration received by the assessee in relation to the clearance of the product manufactured by him. 21. The term "sale" used in die definition clause should not be misunderstood as having used, otherwise than to identify the stage at which the product is cleared to the customer i.e. the buyer thereof and the price element which is to be considered for the purpose of deciding the issue relating to the assessable value of the manufactured goods. It essentially denotes the total consideration payable by the buyer for the product which is to be considered while ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Silliguri Municipality and Dunlop India cases (supra) without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows : " 35F. Deposit, pending appeal of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant would derive from compliance with it. 14. The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interest of revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interest of revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate condition as required to safeguard the interest of revenue. 15. In view of the above decision of the Hon'ble Supreme Court we find that the present case is not case which can be considered that denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen' faith. As the Larger Bench of the Tribunal in the case of Maruti Suzuki India's case (supra), after taking into consideration of the decision now relied upon by the appellant, on the same issue held in favour of the Revenue, therefore the applicant has not made out a case fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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