TARGET MARKETING Vs. CCE

JUDGEMENT

(1.) THESE are two stay applications filed by the same appellant in respect of dismissal of their appeals by Commissioner (Appeals) on the ground that they have not pre deposited the amounts as determined by him in the Interim order under Section 35 of the Act. E/S/623 & 624/99 arise from Order -in -Appeal No. 69 & 70/99 dated 13.4.1999 by which the duty amount directed to be pre deposited is Rs. 12,03,087/ - with an equivalent amount of penalty under Section 11AC and further penalty of Rs. 6,00,000/ - in one case and duty amount of Rs. 14,13,068/ - with equivalent amount of penalty under Section 11AC and further penalty of Rs. 1500 -/ in the second appeal which was in respect of demands raised for two different period 1992 -93 to 1996 -97 on the ground that the appellants had manufactured and cleared UPS System from their factory premises and the battery for the said system purchased from battery dealers and integrated with the UPS at the customer's premises by them and at the time of clearance of the system, duty was paid only on the assessable value of UPS only and not on the value of battery which was held to be an integral part of the system by the original authority.

(2.) THE Commissioner (Appeals) did not accept the plea that the appellants have a strong prima facie case as the value of the bought out battery was not includible in the assessable value as the UPS was cleared without the battery and the battery was directly taken to the customer's place. He has held that the appellants have no prima facie case, hence the entire amount of duty and penalty under Section 11AC and under Rule 173Q was required to be deposited.

(3.) SHRI S. Kannan, Ld. D.R. arguing for the Revenue submits that the appellants have absolutely no prima facie case. It is his submission that UPS System is nothing but a battery plus a charger and the function of UPS cannot get completed unless battery is fitted as battery being an essential part of it. Therefore, he submits that from these judgements he submits that the ratio is very clear that even if battery is a bought out item, the value of it is required to be added as it is an essential component as noted in the Kerala State Electronics Development Corporation (supra). He submits that the said ratio has not been differed in Supra Hi -Tech Electro Equipments (P) Ltd. wherein also in para 11 of the order it has been held that whenever the appellants removed UPS without battery, value of battery is also to be included in the assessable value. He submits that in all cases, battery was not manufactured by the appellants, they were always bought out and hence the string of ratio in all these cases was that the value was to be added. He submits that in this present case there is no financial hardship, therefore the appellants are required to pre deposit the entire amounts.