1. The appellant seeks interim stay of the order made by the Commissioner on 20-6-06 confirming the demand of total sum of Rs. 40.37 crores being the amount of differential duty of customs in respect of goods of concentrates of alcoholic beverages (CAB) imported during the period from January 1995 to June, 2000 and July 2000 to May, 2001.
2. This is the third round of litigation after the earlier two remands made by the Tribunal. The impugned order has been made pursuant to the remand order dated 29-6-05 2006 (197) E.L.T. 351 (Tribunal) by which this Tribunal decided the appeal on the basis of the applicability of Rule 6 of the Customs Rules for determination of transaction value and issued the following directions in paragraph 20 of the order: 20. From the above, it is clear that the valuation of the items in question should be re-done by using lowest transaction value of Findlaters for determining the price of 100 Pipers. Further, due adjustments towards quantity difference and retail price difference should be made wherever warranted. In order to facilitate such revaluation, we set aside the impugned order and remit the case to the Commissioner for fresh adjudication. Both sides would be at liberty to present data relevant to the above issues 3. The appellant had been engaged in bottling of international brands of scotch whisky in India since 1994. For such activities the appellant imported scotch whisky concentrates. The manufacturing process involved dilution of imported whisky concentrates (approximately 63% proof) to the permitted Indian concentration of 42.8% proof; and, in case of Scotch whiskies sold under Indian brands imported whisky concentrates (malts) were being mixed with indigenous whisky concentrates and bottled.
4. The imports were made by the appellant from M/s. Joseph Seagram and Sons Ltd., Scotland which is wholly owned subsidiary of Seagram Company Ltd., Canada. For such imports, the appellant obtained import licence of CAB having duration of one year (April to March). The validity of the import licence of 12 months was on the condition of "actual user" for annual production programme. At the time of importation, the appellant had declared the item as CAB without disclosing the brand name of the product or the age of scotch and malt whisky. During the subsequent renewed licensing periods also, no further information was furnished by the appellant, and the goods were cleared on provisional basis.
5. On receiving secret information that the appellant had not disclosed the fact that they were importing bulk scotch whisky of about sixty percent plus v/v concentration and had been declaring the goods imported only as CAB and that the goods were being assessed under the Headings different from the correct classification under sub-heading 2208.30, as scotch whisky, a show cause notice was issued for the aforesaid two periods alleging the manner in which the appellant had resorted to a well planned conspiracy for evading huge amount of customs duty and circumventing the import restrictions and artificially reducing their actual export obligations. On the petition filed against the show cause notice, the Hon'ble High Court of Delhi directed that the notice should be treated as a show cause notice for finalisation of assessment under Section 18 of the Customs Act, 1962. The two show cause notices issued on the appellant came to be adjudicated by order dated 31-5-2002 confirming a total demand of Rs. 41,70,49,724/- as against the amount of Rs. 50,05,12,913/- demanded under the show cause notices. In the appeal filed against that order, the Tribunal on 25-3-2003 2003 (154) E.L.T. 610 (Tribunal) remanded the matter "for fresh consideration in the light of the findings and observations in the order". It was directed that the Commissioner will afford opportunity to the appellant to submit its reply on the proposal to invoke Rule 6. It was made clear that it will be open to the Commissioner to proceed under Rule 7 to 8 in case he came to a conclusion, after taking into consideration the reply submitted by the appellant, that Rule 6 is not liable to be invoked (paragraph 27 of the order).
6. Pursuant to the said order of the Tribunal, the Commissioner made an order on 27-8-2003 determining the value in terms of Rule 6 of the Customs Valuation Rules holding that there was short levy of about Rs. 40 crores in respect of the consignments covered under the said two show cause notices. That order was again challenged before the Tribunal by the appellant on the grounds that: (i) Rule 6 is not applicable for the valuation of the goods in India; (ii) The correct method to follow would have been deductive value method stipulated in Rule 7; and (iii) The Commissioner had fixed high assessable value arbitrarily by flouting the provisions of Rule 6.
6.1 In their objection against selecting "similar goods", it was contended that the price of a high branded consumer item was not dependent upon or determined by its intrinsic cost, but was given by its brand value. It was submitted that the transaction value of the appellant's imports should have been seen in the context of its brand position in the Indian market at the time of the imports. According to the appellant, the transaction value was about 9.5% higher than the value arrived at, if the deductive value method under Rule 7 had been followed.
6.2 In the context of Rule 6, it was contended before the Tribunal, that the Commissioner had not disclosed or taken into consideration the entire data relating to import of similar goods during the period of dispute and that failure had vitiated the findings. It appears that during the appeal proceedings the Tribunal issued a direction for disclosure of particulars of all imports, and as observed in paragraph 6 of the order : "Both sides were heard in relation to the data so disclosed. Both sides...also filed written summaries of their arguments." The Tribunal refused to go into the issue about appropriateness of Rule 6, for two reasons namely: (i) The tribunal had earlier left this Rule open to the adjudicator in the remand order; and (ii) No appeal had been filed against that order and secondly because the appeal could be disposed of after considering the contentions of the appellant in the context of Rule 6.
In paragraph 7 of the order the Tribunal held that the appeal could be disposed of "after considering the appellant's contentions in terms of Rule 6". This part of the order admittedly was not challenged by the appellant and the decision of the Tribunal not to go into the issue about the appropriateness of Rule 6, apparently became final.
7. After the second remand the Commissioner, taking note of the direction that valuation of the items in question was to be redone by using lowest transaction value of find later for determining the price of 100 Pipers, and wherever warranted due adjustments towards quantity difference and the retail price difference should be made, held that the scope of the remand was only for 'facilitating such revaluation', and that the arguments relating to non-applicability of Rule 6, could not be accepted in the remanded proceedings. He accordingly proceeded to determine the valuation of the goods as per the directions contained in the remand order dated 29-6-2005. He took note of the fact that under Rule 6, the value of imported goods shall be the transaction value of similar goods sold for export to India and imported at or about the same time as the goods being valued. He also noticed that the provisions of Clauses (b) and (c) of Sub-rule (1) and Sub-rules (2) and (3) of Rule 5 of the said rules were made applicable in respect of similar goods by virtue of Sub-rule (2) of Rule 6. He found that there were three main issues in respect of the products of CAB imported by the noticee, namely : whether any adjustment was required on account of alcoholic strength, whether the lowest price of similar goods was to be determined on "year to year" basis or the lowest price available for the entire period (1995 to 2001) was to be made applicable to the entire period, and as regards the adjustment on account of quantity imported by the noticee and the quantity imported by the importer of similar goods. From the material on record he found that the price of CAB in the international market was based on the alcoholic strength of the concentrates (para 31 of the order). It was noted that the value of bulk spirit was calculated at the time of sale based on its alcoholic strength and this was the industry's practice followed throughout the world. In paragraph 32 of the order the authority found that the noticee had changed its stand taken in the appeal memo and was now stating that lowest prices should be made applicable to the entire period. It was held that under Rule 6(1) value of the imported goods shall be the transaction value of similar goods sold for export to India and imported at or about the same time as the goods being valued.
It was held that time of import was an important factor and that it will be contrary to the scheme of valuation under the Act and the rules, if the lowest price taken was made applicable for the entire period (1994-2001). He, therefore, held that comparison should be made on 'year to year' basis.
8. As regards the question whether any adjustment on account of quantity imported by the noticee was required to be given on the value of quantity imported by the importer of the similar goods, it was found that the import of bulks scotch and malt whisky were classified as a restricted item covered under negative list of import during 1994-2001 in the import and export policy and that these goods were allowed to be imported against specific import license issued by DGFT to an actual user valid for 12 months and the licence had the restriction on CIF value and quantity. CAB was not freely importable at that time and quantity imported was subject to restriction of the quantity and value mentioned in the licence. It was, therefore, held that the comparison of quantities of one licensee with the quantities of another licensee was not reasonable, as the quantity was restricted by DGFT while granting the licence. On the contention of the noticee that the quantity imported by them was much more as compared to quantity of similar goods and requesting adjustment in value on account of quantity, it was held that the noticee had simply given total quantity of import of CAB for the period covered under the show cause notice, and had not produced any evidence or price list of the import of similar goods to suggest that, had the same quantity as was imported by the noticee been imported by the importer of similar goods, the price of the similar goods for that quantity would have been lower than the value of quantity of similar goods imported. It was held that in the absence of any such demonstrated evidence, it was not appropriate to give any adjustment in value of similar goods on account of quantity.
The Commissioner held that the noticee had not been able to produce "demonstrated evidence", to establish the reasonableness and accuracy of adjustment and, therefore, it was not proper to allow 'quantity adjustment' merely on the basis of total quantity imported by the noticee. He then proceeded to consider various items, namely, 100 Pipers, Passport, Something Special, International Malt, for determination of the value of the goods in question. On the basis of the material on record, he worked out the total differential duty of Rs. 23,54,15,685/- in respect of 'International Malt', Rs. 12,90,51,794/- in respect of 100 Pipers, Rs. 2,31,73,233/- in respect of Something Special, Rs. 1,10,23,217/- in respect of Passport, and also difference of customs duty payable on six bills of entry of Passport and Something Special at Rs. 15,71,610/-, i.e., in all a total sum of Rs. 40.37 crores and directed the appellant to deposit the same forthwith after adjusting the amount already paid by the noticee for the relevant period.
9. The learned Counsel appearing for the appellant contended that the Commissioner erroneously refused to consider whether Rule 6 was applicable. According to him, in respect of the goods which were imported, trade mark had great value and the whiskies of particular trade mark and quality were not comparable with any other whiskies. He submitted that though the Tribunal had earlier left it open for the appellant to contest the applicability of Rule 6, the Commissioner did not understand the order of the Tribunal when he held that application of Rule 6 was finally decided by the Tribunal. It was also submitted that the required quantity discounts were not given in respect of the imports of the appellant. According to him, the imports of the appellant were larger in quantity than the other imports of goods considered to be similar. It was also submitted that price adjustments were made wherever it was convenient to the Revenue. The learned Counsel argued that the directions given by the Tribunal in paragraph 20 of the remand order were only in the context of the alternative plea and it was necessary for the Commissioner to go into the challenge on the ground of non-applicability of Rule 6 which he refused to do under the impression that the issue was concluded. It was further argued that even if Rule 6 was assumed to apply, the minimum price of findlaters (.88 pence) should have been accepted for the entire period and the volume discount should have also been adjusted which would have resulted in approximately the same price at which the goods considered to be similar, and the imported 100 pipers CAB were imported during the period in question. It was also contended that the retail price of findlaters in Delhi was considered without disclosing the same to the appellant. Therefore, there was violation of principles of natural justice. As regards the import of Passport CAB, it was contended that the quantity discount was not given while considering comparable value of the imported similar goods. It was submitted that for the first two years, the minimum price of Special Reserve was accepted while for the other two years lowest price of Black and White was adopted. According to him, minimum price of Special Reserve ought to have been accepted for all the years. The learned Counsel submitted that if the retail price of two bands was in the same price band, it will not imply that the price of concentrate inputs imported by them will also be in the same price band. In respect of the import of 'Something Special' CAB, the learned Counsel argued that the lowest price on year-wise basis was wrongly adopted and that lowest price for the entire period should have been adopted. In respect of International Malt Concentrate CAB, it was contended that the quantity discount was not given.
9.1 The learned Counsel for the appellant placed reliance on the decision of the Delhi High Court in Super Tyres Pvt. Ltd. v. Union of India , to point out that the High Court observed in paragraph 3 of the Judgment that, it would have been appropriate for the authorities concerned to hear the appellant without the pre-deposit condition of Rs. 20 lacs, because the appellant had already deposited a sum of Rs. 20 lacs which itself was considered by the Tribunal to be an adequate amount for compliance with the provisions of Section 35F of the Act. It will be noticed that in that case the assessing officer had earlier adjudicated the excise liability at Rs. 2,76,48,219/- and after the remand order made in an appeal by the Tribunal in which deposit of Rs. 20 / lacs was made, the assessing officer had once again re-adjudicated the matter confirming the same demand of Rs. 2,76,48,219/- and the penalty. The High Court directed the Tribunal to hear the appeal against the order of the adjudicating authority without enforcing further condition of pre-deposit. The learned Counsel also relied upon the decision of the Hon'ble Delhi High Court in Writ Petition No. 432/06 dated 16-1-2006 in which the said decision in Super Tyres was followed.
10. The learned authorized representative for the department, on the other hand, submitted that power of the Tribunal to order pre-deposit when there was no undue hardship, was not taken away in all cases where fresh orders were made after remand by the Tribunal and the decision in Super Tyres Pvt. Ltd., (supra) was not applicable to cases where the Tribunal remanded the matter for a limited purpose of valuation by making adjustments, which was done in the present case. The learned authorized representative for the department argued that the Commissioner was required to consider the matter in the light of the directions given in paragraph 20 of the order, in the context of the provisions of Rule 6. It was submitted that the applicability of Rule 6 was no more in issue in view of these directions. It was further contended that the appellant was required to make the deposit of the duty amount in view of the provisions of Section 129E of the Act since no undue hardship was pleaded, and the financial condition of the appellant was admittedly sound enough to pay up the amount. He submitted that in Super Tyres Pvt. Ltd., (Supra), where the same demand was reiterated and assessed against the noticee, the Court held that it was appropriate for the authorities to hear the appellant without pre-condition of a deposit of a further amount of Rs. 20 lacs. It was submitted that such an order cannot be construed as a precedent taking away the power of the Tribunal to exercise its discretion under the provision of Section 129E in the context of the fresh order passed in this case which was of simply redoing the valuation of the goods in the light of the directions given by the Tribunal. It was submitted that the question of applicability of Rule 6 stood concluded against the appellant because while making the first remand order the Tribunal did not accept the contention that Rule 6 could not be invoked, but left it to the adjudicating authority to choose the proper rule. It was stated that an appeal preferred against that order before the Hon'ble the Supreme was dismissed. Even the second remand order, which required the Commissioner to proceed on the basis of applicability of Rule 6, which is clear from the nature of the directions, was not challenged by the appellant. It was further contended that the appellant did not establish any entitlement for quantity discount and no such agreement of discount was produced, nor any evidence submitted to demonstrate existence of such discount. As regards the adjustments on the basis of alcoholic strength in respect of 100 piper in comparison with similar goods findlater, the learned authorized representative submitted that increase in valuation was wholly justified. On the contention that retail price of findlater prevalent in Delhi, should not have been considered, the learned authorized representative for the department pointed out that the appellant itself had, in paragraph 4 of the reply to the show cause notice, asserted that they were certain that the findlater was being sold at a price ranging from Rs. 650/- to Rs. 768/- depending on the state in which the product is sold. Therefore, the contention that principles of natural justice were violated is not correct. It was argued that under Rule 6(1), the transaction value of similar goods sold for export to India and imported at or about the same time as goods being valued, was required to be adopted in view of the scheme of valuation under Section 14 of the Act and therefore, the adjudicating authority had correctly applied the lowest value of imports of comparable goods on yearly basis since even the licences were valid for a period of one year.
10.1 The learned authorized representative for the department and the learned Counsel who subsequently took over the arguments, placed reliance on the following decisions in support of their contentions: (a) Commissioner of Customs, ICD, TKD, Delhi v. CEGAT, New Delhi Commissioner of Customs, Bangalore v. United Telecom Limited reported in 2006 (198) E.L.T. 12 (Kar.)Eveready Industries (I) Ltd. v. Commissioner of C. Ex., Chennai-I 11. The requirement of making deposit as a condition of hearing of the appeal is incorporated in Section 129E of the said Act and it is only when there is undue hardship that the Tribunal will have the discretion to waive the requirement wholly or partially, depending upon the facts and circumstances of the case. In the present case, much reliance is placed on the earlier order dated 10-2-2004, made on the stay application in the previous appeal in which the Tribunal had ordered that the amount of Rs. 9,74,89,922/-, which was already recovered out of the total demand of Rs. 39,96,12,771/-, was sufficient for hearing that appeal. It will be seen that the Tribunal noted in paragraph 5 of the second remand order made on 29-6-2005 that, the very first unfortunate thing to be noted was that the second adjudication had not reduced the area of dispute or established a proper factual basis for the order. The requirement of pre-deposit was, therefore, obviously viewed in the context of such an order which was under challenge before the Tribunal. In the present case, the Tribunal confined the remand only to the limited aspects spelt out in para 20 of its order and, prima facie, it proceeded on the footing that Rule 6 could be invoked and gave directions to the adjudicating authority for re-doing the valuation using lowest transaction value of find-later for determining the price of 100 piper. The other direction was that due adjustments should be given to quantity difference, and retail price difference should be made wherever warranted. The remand was made only to facilitate such revaluation. Thereafter, the adjudicating authority appears to have scrupulously followed these directions and has made the impugned order on the basis of the material on record, for cogent reasons. For deciding whether pre-deposit of further amount is warranted or whether pre-deposit is warranted at all, we are vitally concerned with the nature of the order now made by the Commissioner.
The decision in Super Tyres Pvt. Ltd. (supra) which was followed in WPC 432/2006 appears to have been rendered in the context of the fact that the same demand was reiterated after the remand for de novo adjudication. The High Court observed that it would have been appropriate for the authorities concerned to hear the appellant without further pre-deposit. It is obvious that the Hon'ble the High Court did not intend to take away the power of the Tribunal under Section 129E to require deposit to be made in cases where there is no undue hardship, having regard to the nature of the order which is challenged before it and in the facts and circumstances emanating pursuant to the remand. In the present case, the situation after the remand on the basis of the facts noticed by the adjudicating authority and its findings is entirely different than what it was when the Tribunal was seized with the stay application in the earlier proceedings.
12. The differential duty demand in respect of International Malt comes to Rs. 23,54,15,685/-. It is not disputed that the said product imported by the noticee was a raw material and not finished goods like blended scotch whiskies where retail price adjustments were envisaged.
Therefore, no retail price adjustments were warranted in the case of International Malts, as rightly held by the adjudicating authority. The CAB of International Malts imported by the appellant had alcoholic strength of 60% and it was five years old at 0.72/BL + packing insurance and ocean freight. The similar and comparable malt spirit imported by other companies was by Shaw Wallace & Co. Ltd., Central Distilleries and Beverages Ltd., Pampasar Distilleries Ltd., Whyte and Mackay India Pvt. Ltd. and National Industrial Corporation Ltd. The imports of malt spirit by these companies were three years old at 60% alcoholic strength. The adjudicating authority noted the lowest prices during the period of the imports made by these companies. It was also noted that the entire data pertaining to import of malt spirit by all companies for the period 1994-95 to 2000-01 was furnished earlier to the Tribunal (i.e. before the remand) with a copy to the noticee in January 2005. The alcoholic strength of malt spirit imported by the appellant and similar and comparable malt spirit by other companies was 60% and therefore, obviously no adjustment was required in respect of alcoholic strength in the import values. However, the comparable malt spirit imported by other companies was three years old while the malt spirit imported by the appellant was five years old and there could be no dispute over the fact that price of five years old malt spirit would be higher than the price of three years old malt spirit. The adjudicating authority, therefore, found it reasonable for ascertaining the lowest price of similar goods to take lowest of price of comparable three years old malt spirit, as the alcoholic strength of the bulk was same. Differential duty chart was accordingly worked out to determine the value of imported CAB year-wise on the basis of the lowest price of similar goods. The appellant did not adduce any evidence whatsoever to justify any quantity discount beyond merely a bare assertion.
Therefore, the finding regarding differential duty in respect of International Malt payable by the appellant which is worked out at Rs. 23,54,15,685/-, prima facie, appears to be justified and based on the material on record.
13. Any adjustment on account of quantity imported could be made only on the basis of demonstrated evidence establishing the reasonableness and accuracy of the adjustment. This is clear from the provisions of Clause (c) of Rule 5(1) which also applied to determination of valuation under Rule 6(2) and as per the interpretative note 4 of Rule 5 which is also applicable to Rule 6, a condition for adjustment because of different commercial level or different quantity is that, such adjustment, whether it leads to an increase or a decrease in the value, be made only on the basis of demonstrated evidence that clearly establishes the reasonableness and accuracy of the adjustment, e.g.
valid price lists containing prices referring to different levels or different quantities. The appellant simply gave the total quantity of import of CAB by them for the period covered by the show cause notice.
They, however, did not produce any evidence or price list of the import of similar goods to suggest that had the same quantity as was imported by the appellant been imported by the importer of similar goods, the price of the similar goods for that quantity would have been lower than the value of quantity of similar goods imported by the importer of similar goods. Prima facie, therefore, the Commissioner appears to be justified in holding that in the absence of any demonstrated evidence, it was not appropriate to give any adjustment in value of similar goods on account of quantity. The appellant did not produce any material that would establish the reasonableness and accuracy of the quantity adjustment.
14. In respect of "100 pipers", the Tribunal had earlier directed that valuation should be re-done by using lowest transaction value of findlaters for determining the price of 100 pipers. The Commissioner has found that the import by the appellant of CAB "100 pipers" had a concentration of about 63.5%. In the earlier remand order, the Tribunal had taken 'findlaters' to be similar goods for "100 pipers". The appellant had shown import of CAB scotch whisky at 0.61/BL having alcoholic strength of 63% a + packing, ocean freight and insurance.
Since there was no import of findlater scotch whisky during 1994-95, the lowest value of findlaters imported in 1995-96 was considered for the purpose of assessment for the years 1994-95 and 1995-96. The lowest import value of CAB "findlaters" scotch whisky imported during 1995-96 was 0.88/BL CIF, having alcoholic strength of 55% including packing, ocean freight and insurance. Since there was a difference in the alcoholic strength, the value was required to be adjusted for 63% alcoholic strength, which was worked out by the Commissioner at 1.008/BL. Keeping in view the direction earlier given by the Tribunal that due adjustment was required to be made, as in the normal course, difference in import price would be an element contributing to difference in retail price, the Commissioner found that difference in retail price of 'findlaters' and "100 pipers" in 1997 was Rs. 115/-, which means price of "100 pipers" was 18.8% more than of price of 'findlater'. It was noted that thereafter retail price of "100 pipers" had been increasing year after year. However, only the lowest difference of 18.8% on 'findlaters' value was adopted for comparison.
15. The appellant had already asserted that it had the knowledge of the retail price of 'findlater', which was sold at prices ranging from Rs. 650 to Rs. 768/- depending upon the State in which the product was sold. Obviously, therefore, the appellant would be aware of the price at which it was sold at Delhi. Therefore, prima facie, there was no violation of principle of natural justice when the Commissioner referred to the fact that since the import had taken at Delhi, it was logical to compare the retail price of findlaters and 100 pipers prevalent in Delhi rather than the retail prevalent price in other States. During the arguments, this observation of the Commissioner was blown out of proportion and the learned Counsel bestowed much of his advocacy on this aspect for urging violation of principles of natural justice. With the knowledge that the appellant itself claimed to have in respect of the prevalent prices of 'findlaters', there was hardly any valid reason to counter the reliance by the adjudicating authority on the retail price at Delhi, since the imports had taken place at Delhi, for comparing the retail price of findlaters and "100 pipers".
It will be seen that the MRP price of 'findlater' in New Delhi was constant from 1997 at Rs. 610/- while the MRP of 100 pipers kept on rising from Rs. 725/- to Rs. 830/-between 1997 and 2001. The Commissioner, however, took the lowest difference of 1997 between Rs. 725/-(100 pipers) and Rs. 610/- (findlater) for working out the difference in retail price at Rs. 115/- being 18.8% more than of price of findlaters. Therefore, the findings of the learned Commissioner on valuation of 100 pipers are in consonance with the direction given by the Tribunal in the remand order and are based on just and valid reasons. The differential duty demanded on this count was Rs. 12,19,51,794/-.
16. As regards the CAB of Passport, the Commissioner accepting the submission of the appellant that Passport scotch whisky was comparable with Special Reserve scotch whisky of Whyte and Mackay held that the value of Passport scotch whisky was required to be determined with reference to Special Reserve scotch whisky wherever price was available and where no price was available, there was no option but to consider Black and White scotch whisky of M/s. United Distillers. The CAB for Passport was imported by the appellant at an alcoholic strength of over 63% and therefore, was liable to be adjusted for the price of similar comparable goods with respect to alcoholic strength. The Special Reserve scotch whisky imported by M/s. Whyte and Mackay during the period 1996-97 at 0.94/BL CIF including packing had alcoholic strength of 55% which would be on adjustment equal to 1.07/BL at 63% alcoholic strength. The Commissioner undertook the exercise for each year keeping in view the criteria of nearest import at the lowest price of the comparable goods imported during the year. It was also found that the retail price adjustment was not required in view of the fact that the appellant had produced a bottle of Special Reserve scotch whisky as available during the relevant period of time showing MRP of Rs. 900/-indicating that the price of Special Reserve was in the same price band as that of passport. The differential duty was accordingly computed for passport CAB at Rs. 1,10,23,217/-. Prima facie, there appears to be no error in reaching these findings, keeping in view the directions issued by the Tribunal earlier.
17. In respect of CAB of Something Special scotch whisky imported by the noticee at 1.31/BL plus packing, insurance and ocean freight having alcoholic strength of 63% v/v which was found to be similar and comparable to Black Dog scotch whisky of United Distillers, the Commissioner accepted the appellant's claim that the retail price of similar and comparable brand Black Dog 12 years old scotch whisky was Rs. 1300/- per bottle whereas the retail price of Something Special 12 years old scotch whisky was Rs. 1100/- per bottle, and worked out the difference of Rs. 200/- per bottle at 18% which was adjusted with each year's lowest import value of Black Dog 12 years old scotch whisky, to arrive at the lowest import value of Something Special 12 years old scotch whisky, and the difference amount of duty was justifiably worked out at Rs. 2,31,73,233/-.
18. The grievance of the appellant voiced by the learned Counsel that the lowest price of each year should not have been taken into account and the lowest price during the entire period 1995-01 should have been taken into account, cannot be accepted for the simple reason that the scheme of the provisions of Section 14 of the Act and Rule 6 of the Rules clearly contemplated taking into consideration of the transaction value of "similar goods" sold for export to India and imported at or about the same time as the goods being valued. Therefore, the adjudicating authority has adopted a rational basis for working out the transaction value of the goods in question which were imported by the appellant during the period covered by the show cause notice for valid reasons mentioned in paragraphs 32 and 33 of the impugned order.
19. For the foregoing reasons, we are of the opinion that the applicant has not made out any case whatsoever for grant of interim stay of the impugned order and waiver of pre-deposit and the liability of the appellant stands crystalized at this stage at Rs. 40,37,35,539/-. There is, prima facie, no illegality committed by the adjudicating authority and therefore, there is no reason to contend undue hardship on the ground of illegality. Financial hardship admittedly was not there as was made abundantly clear by the learned Counsel. If there is absolutely no undue hardship, it would be flying in the face of the provisions of Section 129E, if we waive deposit of any amount payable under the impugned order, for hearing the appeal in this matter. We accordingly direct that on the appellant's depositing the duty amount payable under the impugned order (Rs. 40.37 crores) within eight weeks from today, there shall be interim stay of the impugned order during the pendency of the appeal. The amount of Rs. 9,74,89,922/-, which is said to have been deposited earlier will stand adjusted towards the deposit ordered, if the amount is not already withdrawn. It was submitted by the learned Counsel that an amount of Rs. 12.77 crores is recoverable by the appellant from the Revenue in view of the order passed by the Bombay High Court. The learned authorized representative for the department, however, submitted that, that amount was in respect of the subsequent period and that the proceedings were still pending.
It is clear that if there is a direction of the competent court to the Revenue to refund that amount in a different litigation for the subsequent period, no adjustment order can be ordered by this Tribunal and appropriate directions may be sought by the applicant from the Hon'ble High Court for allowing the amount to be treated as a part of the pre-deposit directed under this order instead of refunding it as ordered by the Hon'ble High Court. If the full amount, as ordered is not deposited within eight weeks from today, this appeal will stand dismissed. Post the matter for compliance report on 12-3-2007. This application stands disposed of accordingly.