TMI Blog2014 (2) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... introduction of the Transaction Value regime, the ld. Advocate expressed his inability to answer the same, as nothing is borne out from the record available with him. - Applicant could not able to make out a prima-facie case for total waiver of predeposit of the dues adjudged. - Stay granted partly. - APPEAL NO.E/A/84/2012 - ORDER NO.SO/75035/14 - Dated:- 8-1-2014 - DR. D.M. MISRA AND DR. I.P. LAL, JJ. FOR THE APPELLANT : SHRI N.K.CHOWDHURY, ADVOCATE FOR THE RESPONDENT : SHRI S.MISRA,A.R.(ADDL. COMMR.) ORDER Per Dr. D. M. Misra This is an Application seeking waiver of predeposit of duty of Rs.4.34 crore and equal amount of penalty imposed under Section 11AC of the Central Excise Act, 1944. 2. Ld. Advocate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been referred to BIFR and recently, taken over by M/s. Indian Railways. 3. Per contra, ld. AR for the Revenue has submitted that on the very same issue, the Hon ble Supreme Court in the Applicant s own case in the year, 1991, had held that free supply items were includible in the assessable of the manufactured wagons. He also submitted that in spite of the said judgments in their own case pertaining to the period, when there is no specific provision to include the value of free issue materials in the assessable value of goods under old Section 4, the Applicant had failed to include the value of free issue materials and discharge the duty on the total assessable value of wagons for the period, March, 2006 to October, 2006, when a specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act except the circumstance where the price is not the sole consideration for sale, the value of such goods shall be deemed to be the aggregate of such transaction value and the amount of money value of any additional consideration flowing directly or indirectly from the buyer to the assessee. [Explanation 1] - For removal of doubts, it is hereby clarified that the value, apportioned as appropriate, of the following goods and services, whether supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale of such goods, to the extent that such value has not been included in the price actually paid or payable, shall be treated to be the amount of money value of additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept the contention of the Applicant on the facts of the case, at this stage, that they harboured a bona-fide belief for non-inclusion of the value of free issue materials in the Transaction Value regime, even though a specific judgment was against them and that too, was also upheld by the Hon ble Supreme Court, way back in 1991. In the result, we are of the opinion that the Applicant could not able to make out a prima-facie case for total waiver of predeposit of the dues adjudged. Accordingly, keeping in view the interest of revenue, the financial hardship of the Applicant and the principle of law settled by the Hon ble Supreme Court and High Courts in disposal of stay applications, we direct the Applicant to deposit 50% of the duty amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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