9911796707
TMI Blog2000 (3) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. According to the writ petitioners, there are four account of disputes; (a) discounts to the wholesale dealers; (b) distribution expenses incurred at depots; (c) Sales tax; (d) notional interest. 3. So far the distribution expenses incurred at depot and sales tax are concerned, the same were upheld by such authority in an appeal following the similar issued vide Order in Appeal No. 74/Cal-I/98, dated 28th November, 1998 and others were remanded back for the purpose of hearing by the appropriate authority. 4. It was further directed that such order of demand will be considered by the concerned Assistant Commissioner as per the guidelines laid down in a circular as given thereunder which has been issued in the light of the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, would be Rs. 4,20,291.09 for the entire period. Under no circumstances, there can be imposition of pre-deposit for a sum of Rs. 50 lakhs arising out of the alleged confirm demand of Rs. 1,14,75,120/-. 8. The scope and ambit of Section 35F of the Central Excise Act, 1944 is as follows : "…..Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it will not be out of place to mention here that it is now well settled through judicial precedents that the prima facie case not necessarily means that one must have a gilt edged case which is bound to succeed. Prima facie case always has been held by the Courts to be a case which is arguable and fit for trial and consideration. 11. He has also relied a judgment (Sri Krishna v. Union of India) reported in the same volume being 1998 (104) E.L.T. 325 (Delhi) a Division Bench of Delhi High Court considered the matter more or less similarly placed situation in respect of the similarly placed Section being 129E of Customs Act, 1962. There also the Division Bench of Delhi High Court considered that either in Section 129E of Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents/authorities that in 1995 (75) E.L.T. 449 (S.C.) speaks that notional interest on advances made by the Customs to assessee addable to purchase as assessable value. There is no necessity to go into the description any further because of the reason that this Supreme Court judgment has been distinguished by a three Judges Bench of the Supreme Court as reported in 1998 (97) E.L.T. 395 (S.C.). Therefore, ratio of the latest Larger Bench will have a binding effect on such judgment and this court too, in respect of consideration of the matter. 15. Mr. Roy Chowdhury further contended that in view of (Govt. of India v. Madras Rubber Factory Ltd.) reported in 1995 (77) E.L.T. 433 (S.C.) a 3 Judges Bench of the Supreme Court already hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es tax. At the same time, it is to be remembered that the appellate authority remanded back the matter of discount and notional interest to the Assistant Commissioner of the Central Excise to hear out the matter. Therefore, a question arose before this court unless and until there is a prima facie case, there is no scope of remanding any matter to the sub-ordinate authority for the purpose of rehearing the same. Therefore, there is a prima facie case. 20. Therefore, in one hand sending the matter for remand and on the other hand, imposition of penalty under Section 35F of the Central Excise Act, 1944 is militating with each other, hence the same is not sustainable. 21. Secondly, the judgment of the Supreme Court reported in 1998 (97) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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