TMI Blog2015 (5) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... been exercised, keeping in view the facts and circumstances of the present case - Under Section 35G of the Act, this Court would only interfere if there is a substantial question of law involved and the appeal is only to be heard on the questions so formulated. Keeping in view the above discussion, this Court is of the opinion that the substantial questions of law which have been raised by the appellant, do not arise for consideration of this Court in an appeal against an order of pre-deposit. - However, extension of time is granted. - CEA No.93 of 2014, CEA No.94 of 2014 - - - Dated:- 15-5-2015 - MR. S.J.VAZIFDAR, ACTING CHIEF JUSTICE AND MR. G.S.SANDHAWALIA, J. Mr.V. Lakshmikumaran, Advocate, Mr. Aman Pratap Singh, Advocate, Mr. Amrinder Singh, Advocate, Mr. R.K. Hasija, Advocate and Mr. Shobit Phutela, Advocate, for the appellant Mr.Kamal Sehgal, Advocate, for the respondent. JUDGEMENT G. S. Sandhawalia J. 1. This judgment shall dispose of CEA Nos.93 94 of 2014, filed under Section 35G of the Central Excise Act, 1944 (for short, the 'Act'), filed by the manufacturer, since common questions of law and facts are involved and by a common imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessable value and taxes, as declared in the invoices. The appellants were also permitting different incentive schemes as corporate discounts, free insurance for the sale of the vehicles under the brand name 'Maruti' by way of regular advertisement. The advertisement provided the details of the offers and also gave the names and telephone numbers of the dealers through whom the schemes could be availed. After going through the advertisement and investigation done on the ground that the show cause notice was got issued on the ground that the promotional schemes should be included in the assessable value, as per the definition of transaction value, given under Section 4(3)(d) of the Act, which provided for determination of demand of customs or the central excise duty of transaction value. Investigations were made, accordingly, and correspondence inter se the appellants and the dealers and a conclusion was prima facie arrived at that the schemes were conceived and prepared by the manufacturer and the dealers were not party to the schemes and the stand taken that the schemes were launched by the dealers, was not correct. The dealers were bound to implement the schemes and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s' promotion scheme provided from the dealers' margins had been included in the assessable value, which was quantified as ₹ 15,70,21,54,908/- and the central excise duty was quantified at ₹ 240,57,84,802/-. Recovery of interest were also ordered under Section 11AB and penalty to the tune of an equivalent amount of ₹ 240,57,84,802/- was levied, while giving the benefit upon the institutional discounts and spot discounts which were not to be included in the assessable value. 7. The appellant-manufacturer, filed an appeal before the Tribunal along with an application for waiver of the pre-deposit and taken the plea that there was no fraud and no wilful mis-statement and the demand was time-barred. Vide the impugned order, the Tribunal came to the conclusion that the only issue involved was whether the amount of dealers' margin which had been offered as part of the promotional discount, was includible in the assessable value, for the purpose of payment of central excise duty or not, in view of the definition of Section 4(3)(d) of the Act, wherein, transaction value had been defined. It was, accordingly, held that it would form part of the assessable val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Vs. Commissioner (Appeals) Customs 2005 (184) ELT 347 (All.). 10. Counsel for the Revenue, on the other hand, submitted that in view of the amendment made in the section, the transaction value would include the value of the concession given by the dealers and the interest of the Revenue was to be protected. In the absence of any financial hardship being faced by the appellant-company, the discretion exercised by the Tribunal is not lightly to be interfered with, in the facts and circumstances and out of the ₹ 240,57,84,802/- of duty along with penalty of the equivalent amount and interest etc., only a sum of ₹ 150 crores had been asked to be deposited. 11. The provisions of Section 35F of the Act provide that the Appellate Tribunal should take into account the factum of undue hardship of the appellant and may dispense with such deposit, subject to the conditions it may deem fit, to impose, so that the interest of the Revenue can be safeguarded. The said provisions read as under: SECTION 35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxx xxxx xxxx (d) transaction value means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. 13. As regards the judgment of the Apex Court in Bombay Tyres International Ltd. (supra), the Tribunal noticed that the amendment to Section 4 which came into force on 01.07.2000, incorporating the value of the excisable good, for the purpose of charging the duty on excise to the transaction value and as per their definition, the price actually paid would include in addition to the price charged which the buyer was liable to pay, in connection with the sale regarding the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their own level, had been trying to promote the same by way of advertisement to get out of the ambit of transaction value. However, on a closer examination by the authorities, it revealed that the said fact was not correct and rather, the company was organising the advertisements and the dealers had to comply with the said terms and conditions, in view of the mandatory provisions of the agreement. 16. Under Section 35G of the Act, this Court would only interfere if there is a substantial question of law involved and the appeal is only to be heard on the questions so formulated. Keeping in view the above discussion, this Court is of the opinion that the substantial questions of law which have been raised by the appellant, do not arise for consideration of this Court in an appeal against an order of pre-deposit. The issues raised require consideration at the hearing of the appeal as to the judgments relied upon by the appellant. Moreover, needless to clarify that the observations herein and in the impugned order would not affect the parties at the hearing of the appeal. 17. In such circumstances, this Court is not inclined to interfere with the discretion which has been exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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