ORDER
I.J. Rao, Member (T)
1. We heard Shri Kapoor, the Ld. Consultant. He submitted that he apprehends cohesive action by the Department in respect of assessment even though the appellants have a stay order in their favour. He pointed out that the binding judgment at the moment was passed by the Tribunal holding that for purposes of levy or cess it is the ex-duty value that is to be taken and not the value plus duty. Shri Kapoor further stated. That as the Supreme Court has not given any stay in this order, the Department should be refrained from taking action to recover duty on the basis of value plus cess. Then Shri Krishnamurthy stated that he had enquired from the Department’s appeal in the Supreme Court and there is no stay against the same order. The Ld. SDR submitted that the Department should be given liberty to issue show cause notice so that in the event of the Supreme Court giving a decision in favour of the Department, they should not lose what would then be legitimate revenue to them.
2. We have considered the submissions of both sides. In view of the Tribunal’s Judgment in TELCO and our stay order in this very case, the Department will not be correct in collecting cess on the higher value. However, considering that the Department has filed an appeal before the Supreme Court, we direct that show cause notices may be issued to the appellants but no final orders should be passed against them and demand enforced till such time as the Supreme Court decides the Department’s appeal in TELCO.