per : P.G. Chacko, Member (J)]. - On a perusal of the records and hearing both sides, we find that this case involves a valuation dispute. The adjudicating authority has included what is called "Pre-Delivery Inspection" (PDI) and "free after sales service" (FASS) charges in the assessable value of the vehicles manufactured and sold by the appellant to their dealers during the material period. Consequently, there is a demand of differential duty of over Rs. 9.6 crores on the appellant for the period October, 2010 to September, 2011 and also there is a penalty of Rs. 2 crores on them. The present application seeks waiver and stay in respect of these adjudged dues.

2. According to the learned counsel for the appellant, PDI and free after sales service charges cannot be included in the "transaction value" of the vehicles, where such charges were not collected by the assessee from the buyer (dealer). In the present case, it is claimed that the appellant did not collect any such charges and hence the same cannot form part of the "transaction value" defined under Section 4(3)(d) of the Central Excise Act. In this connection, it is pointed out that the Hon'ble Bombay High Court held to this effect in the case of M/s. Tata Motors Ltd. v. Union of India and Another reported in 2012-TIOL-721-HC-MUM-CX. = 2012 (286) E.L.T. 161 (Bom.) [Judgment dated 7-9-2013 in Writ Petition No. 2744 of 2012]. It is submitted that the Hon'ble High Court struck down two circulars of the C.B.E.&C., one dated 1-7-2002 and the other dated 12-12-2002, both of which were relied on by the adjudicating authority in the present case. On these facts, the learned counsel claims prima facie case against the impugned demand and prays for waiver and stay.

3.Per contra, the learned ADC (AR) points out that there is a Larger Bench decision of this Tribunal in the case of Maruti Suzuki v. Commssioner reported in 2010 (257) E.L.T. 226 (Tri.-LB), wherein PDI and free after sales service charges were held to be includible in the assessable value of vehicles cleared by the manufacturer to dealers. It is further pointed out that, in the case of Tata Motors India Ltd. (supra), the Hon'ble High Court considered the Tribunal's Larger Bench decision but did not interfere with it. It is submitted that the Hon'ble High Court only struck down the two circulars and that the court could not have entertained the valuation issue which fell within jurisdiction of the Hon'ble Supreme Court. It is also pointed out that the Commissioner's order demanding differential duty on the subject vehicles by including PDI and free after sales service charges in the assessable value thereof was also challenged before the Hon'ble High Court in the above writ petition but that challenge was not entertained.

4. We have given careful consideration to the submissions. The Hon'ble High Court struck down both the circulars which were relied on by the adjudicating authority in the present case. The Hon'ble High Court did so after holding thus :-

"For all the aforesaid reasons, we hold that as per Section 4(3)(d) of the Central Excise Act, 1944 the PDI and free after sales service charges can be included in the transaction value only when they are charged by the assessee to the buyer."

The Tribunal's Larger Bench decision in Maruti Suzuki case was rendered long before the Hon'ble High Court took the above view on the substantive issue. The learned ADC (AR) has argued that the Larger Bench elaborately examined the scope of "transaction value" defined under Section 4(3)(d) of the Act and took the view that PDI and FASS charges were includible in the transaction value of the motor vehicles sold by the manufacturer to dealers irrespective of whether such charges were collected from the buyers. But, prima facie, this view taken by the Larger Bench in 2010 is seen impliedly overruled by the Hon'ble High Court in the case of Tata Motors Ltd. (supra). Therefore, for the present purpose, we are unable to follow the Larg