ITI LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD

JUDGEMENT

(1.) THIS miscellaneous application is filed by the party for retention of the appeal before this Bench. The DR has no objection. Accordingly the misc. application is allowed for retention.

(2.) THIS stay application is filed by the applicants for waiver of pre -deposit of duty amounting to Rs. 9,93,37,955/ - and equivalent penalty under Section 11AC of the Central Excise Rules, 1944 and stay of the recovery proceedings.

(3.) SHRI K. Parameswaran, learned Advocate, appearing for the applicants submitted that strong prima facie case is in favour of the party. He said that whether notional interest on advances is includible or not in determining the assessable value is an issue to be considered herein. He said that the issue involved herein has already been considered by the Supreme Court in the case of CCE, Mumbai -III v. ISPL Industries reported in 2003 (154) E.L.T. 3 (S.C.). Further he said that for the subsequent period, the very Commissioner has dropped the proceedings as can be seen from the Order -in -Original No. MP (Dem - 50/2003) 72 of 2003, dated 28 -11 -2003, particularly he drew our attention to Para 9 in the said order which is as under - 9. The view of department was upheld by me in the previous case of the party which was demanded for the period from 1996 -97 to 1999 -2000, which was based on the circumstances ruling of the Apex Courts and direction of the Board prevailing that time. Now the decision of the Honble Supreme Court in case of M/s. Metal Box India Ltd. v. CCE, Madras [1995 (75) E.L.T. (449) = 1995 (2) SC (90)] has been superseded by the Apex Court itself in case of CCE, Mumbai -III v. ISPL Industries [2003 (154) E.L.T. 3 (S.C.)] wherein it has been held that notional interest on advances taken by the assessee from the buyers - where price is not influenced by the fact of interest free advance made by the buyer to the manufacturer, notional interest not includible to the assessable value. The Boards circular also notified the opinion of Law Ministry as follows -.......