TMI Blog2004 (3) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate, submitted on behalf of M/s. Vasundhara Containers Pipes Ltd., that the assessees are engaged in the manufacture of plastic water storage tank of different capacity and section hose pipes; that on their visit of the factory on 11-7-1998 the Central Excise Officers found that the actual capacity of roof tank which were declared to be 300 litres was more than 310 litres; that the Officers also found a test report stating that the net capacity of these tanks was 300 litres and the gross capacity was 353 litres making them ineligible for the benefit of Notification No. 4/97-C.E., dated 1-3-97; that the Jt. Commissioner under Order-in-Original No. 17/2001, dated 28-2-2001, confirmed the demand of duty against M/s. Vasundhara Containers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city; that the learned Commissioner has erroneously held that the tanks of prices ranging from 3.25 to 3.24 per litre capacity are different from tank of prices ranging from 2.65 to 2.85 per litres; that the difference in price is not on account of capacity of tank as has been assumed by the Commissioner (Appeals) but on account of the quality of the tank. He also mentioned that these tanks are bought and sold in the market as tanks of 300 litres capacity only. In fact the words 300 litres are printed on the tanks; that the storage tanks are bought and sold in the market in standard sizes of 100 litres, 200 litres, 500 litres, 1000 litres and are not bought and sold in odd sizes like 310 litres; that therefore, the Appellants are rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than 300 litres capacity. He also submitted that as both Shri Penal Shah and Shri Pragnesh Shah were directing the overall activities and have suppressed the facts and misdeclared the capacity of the tank penalties are liable to be imposed on both of them in reply the learned Advocate submitted that in view of the decision of the Larger Bench of the Tribunal in the case of Srichakra Tyres v. CCE, 1999 (108) E.L.T. 361 (T) = 1999 (32) RLT 1 (CEGAT-LB) the price should be treated as cum-duty price from which the value should be re-determined. 5. We have considered the submissions of both the sides. Tanks of capacity exceeding 300 litres are classifiable under sub-heading 3925.10 of the Central Excise Tariff attracting Central Excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the price of the tank has to be treated as cum-duty price and the assessable value has to be re-determined after allowing the statutory deduction in terms of the decision of the Larger Bench in the case of Sri Chakra Tyres. The extended period of limitation is invocable for demanding the duty as the Assessees have knowingly misdeclared the capacity of the tanks. The penalty is also imposable on both the Vasundhara Containers and Pipes (P) Ltd. and its Director Shri Penal Shah. The Commissioner (Appeals) has given his specific finding about the involvement of Shri Penal Shah, Director which has not been rebutted by him successfully. It has been held by the Commissioner (Appeals) that Shri Penal Shah had accepted the fact and admitted to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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