1. Stay petitions: By this application, the applicants/appellants have pleaded for modification of the order of the Tribunal bearing SB/Stay/Order No. 255/93, dated 16-8-1993 under which the appellants were called upon to pre-deposit a sum of Rs 12.00 lakhs out of a total duty of Rs. 22,63,993.24.
2. Shri Raman, learned counsel for the appellants pleaded that the appellants took the matter by way of writ petition before Hon'ble High Court of Madras and cited the judgment of the Tribunal in the case of Gora Mal Hari Ram Ltd. reported in 1994 (69) E.L.T. 269 and the Hon'ble High Court while disposing of the writ petition remanded the matter to the Tribunal for reconsideration of the issue taking into consideration of the judgment cited before the Hon'ble High Court, by them. The learned Advocate pleaded that when the order was passed by the Tribunal on 16-8-1993, the judgment cited by the appellants was not available with the Tribunal. A prima facie reading of that order of the Tribunal would show that for the wholesale dealers there can be more than one price He pleaded that in the judgment cited, the Tribunal has clearly held as under: "Thus taking all the relevant considerations into account, we consider in the circumstances of the case, on the basis of the facts on record that the appellants' Delhi Distributors and their outstation distributors are different classes of buyers, for the purpose of proviso (i) to Section 4(l)(a) of the Act, and accordingly, each price charged from these different classes of buyers is the normal price in relation to each of them." He pleaded that the appellants filed five different price lists under Part II for the dealers in five regions which were under the respective territorial jurisdiction as part of their commercial marketing strategy and therefore, the appellants' case is clearly covered by the judgment of the Tribunal cited supra. He further pleaded that the Tribunal while deciding the matter has taken note of the judgment of the Hon'ble High Court of Madras reported in 1979 (4) E.L.T. (J 20) in the case of Sharda Silicate & Chemicals Industries v. Collector and also other judgment in the case of Travancore Cements Ltd. reported in 1994 (71) E.L.T. 498 in support of plea. The learned Counsel also referred us to paras 11 and 26 of the judgment which are reproduced below for convenience of reference: "11. In other words, for the purpose of determining the assessable value it is the actual price that is charged by the assessee from the customer that is relevant. Whatever may be the consideration for charging a particular price, it may be market conditions, it may be due to the facility a particular buyer has, it is the price which is actually charged that is relevant for determining the assessable value. In other words, as long as the price is not influenced by extra-commercial consideration and as long as the customer is not related person and as long as the price is the sole consideration for sale, it should alone be the basis for determining the assessable value. We may point out, a manufacturer may enter into different contracts with different industrial consumers for different prices. The contract is a genuine contract and there is no evidence that it is influenced by extra-commercial consideration or there is flow-back to the manufacturer and price is sole consideration for sale, each such contract price shall be the normal price for the purpose of Section 4. In the instant case, it is not the case of the Department that the price is influenced by extra-commercial consideration or that it is not sole consideration for sale or that they are related persons of the appellant. It is also not disputed that it is the actual price which is charged from various industrial consumers from different States. In view of the above, we are of the view that the price charged by the appellant from various industrial consumers from different regions represent the price under Section 4 and the assessable value should be determined on the basis of different prices charged from different consumers from different States.
26. In view of the aforesaid discussion, I hold that there can be more than one normal price in respect of industrial consumers on the basis of regions taking into account the market conditions prevailing in the said region as in the facts and circumstances of this case.
He pleaded for total waiver of pre-deposit of duty in the light of the judgment cited supra.
3. Shri Murugandi, the learned DR stated that the facts in this case appear to be covered by the ratio of the decisions cited by the learned Counsel. However, he has no information as to whether the judgment of the Tribunal has been stayed by the Hon'ble Supreme Court or the Department has moved for stay of the operation of the order of the Tribunal. It was pointed out to the learned DR that there was no plea from the Revenue before the Hon'ble High Court that the order of the Tribunal had been stayed or the matter was before the Hon'ble Supreme Court.
4. We have considered the pleas made by both the sides. We observe that subsequent to the order of the Tribunal, judgment cited was passed and also the majority view that has emerged in the case of Travancore Cements Ltd v. CCE reported in 1994 (71) E.L.T. 498 is that there can be more than one price for different regions based on accepted commercial criterion. The appellants it is seen had filed five price lists and the appellants have been ruled out for the reason that there cannot be more than one price for different class of buyers in different regions. Inasmuch as the ratio of the rulings of the Tribunal cited supra are prima facie applicable to the facts of the present case, we modify our earlier order and grant total stay of recovery of the duty in terms of the impugned order and with the consent of the parties we take up the appeal itself for disposal.
5. Appeal. We observe that the issue as mentioned above will have to be considered in the light of the decision cited by the learned Counsel which prima facie shows that there can be more than one class of wholesale dealers for different regions based on accepted commercial criteria. We, therefore, set aside the impugned order and remand the matter to the original adjudicating authority for consideration of the matter afresh in the light of the Tribunal judgment cited supra after affording reasonable opportunity of hearing to the appellants. We direct the adjudicating authority to dispose of the matter as far as possible within a period of three months from the date of receipt of this order as the matter is likely to have recurring effect.