ORDER
S.L. Peeran, Member (J)
1. The appellants are required to pre-deposit differential duty of Rs. 3,33,68,462/- and Education Cess of Rs. 2,15,989/-. The issue pertains to valuation to be adopted in respect of job worker who manufactured the goods on behalf of the Principals. The appellants’ contention is that they are manufacturing the goods at arm’s length and they are not related persons. The allegation is also not for clubbing the clearances. In these circumstances, the value adopted by the job worker should be the criteria and not the value at which the goods are sold by the principals.
2. The learned Counsel files a copy of the judgment rendered by this Bench, Western Region and Northern Region on this very issue wherein both the Benches have clearly laid down in light of the Apex Court judgment rendered in the case of Pavan Biscuits and in that of Ujagar Prints reported in 1989 (39) E.L.T. 493 that the value adopted by the job worker should be accepted. She also relied on the judgments of this Bench rendered in the case of M/s. Remidex Pharma Ltd. vide Final Order No. 1040/05, dated 1-7-2005 2006 2005 (128) ECR 177 (Tribunal); Elvina Pharmaceuticals Ltd. vide Final Order Nos. 765-769/05, dated 6-5-2005 2005 (70) R.L.T. 734 (Tribunal); Dolphin Laboratories Ltd. ; Cosme Remedies Ltd. .
3. The learned DR submits that the Tribunal’s ruling rendered in the case of Elvina (supra) has been appealed by the Department and the appeal has been admitted by the Apex Court. However, he fairly concedes that the Apex Court has not granted stay of the operation of the Tribunal’s order. He prays for listing the appeal for out of turn hearing.
4. On a aareful consideration, we notice that the issue is no longer res integra. This Bench and other Benches have clearly held that the value cleared by the job worker should be adopted for the purpose of the assessment. It is also clearly noted that in the absence of allegation of clubbing of clearances and the job worker being a related person, then the valuation declared by the job worker should be accepted. In the present case, the job worker is not a related person and their relationship is at arm’s length. Therefore, the cited judgment clearly applies to the facts of the case. It is well stated that when the appellants demonstrate that their appeal is required to be allowed in the ratio of the cited judgment, then their stay application is also required to be allowed without directing them for pre-deposit. This view has been upheld by the Karnataka High Court Division Bench in the case of ITC Ltd. v. CCE and C -ILR reported in 2000 KAR (25), which have also laid down that if the appellants demonstrates to the Tribunal that their case is required to be allowed on merits, then they are not required to pre-deposit the amount. The Apex Court in the case of Mehsana District Cooperative Milk Producers Union v. UOI have also held that no pre-deposit is required to be made, if the appellant establishes that their appeal is required to be allowed on facts of the case. In view of the prima facie nature of the case, the stay application is allowed by granting full wavier and staying its recovery till the disposal of the appeal. As the Revenue involved is more than Rs. 3.5 crores, the matter to come up for final hearing on 13th March, 2006.
(Pronounced and dictated in open Court)