TMI Blog1998 (5) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferential duty on 1 perma tower 1972.80 Total Demand 208335.48" 3. Learned Consultant, Shri D.B. Desai and learned JDR, Shri R.K. Roy, respectively on behalf of the appellant company and for the respondent, were heard and the decision was reserved. Subsequently, the appellants have filed a Note of their Written Submissions vide their letter dated 12-12-1997. 4. Learned Consultant, Shri D.B. Desai had argued that the demand was provisional at the time of passing of the impugned order as has been accepted by the Commissioner in paragraph 12.10 of his Order. He clarified that the appellants had filed a price-list and a Classification List and had executed B-13 Bond of Rs. 1.00 lakh with a Bank Guarantee for a sum of Rs. 25,000.00 in terms of the provisions of Rule 9B. The said Bond and Bank Guarantee were alive at the time of passing of the impugned Order. As such the assessment being provisional, no demand of duty could be raised against them. In support of his above submission, he relied upon the Bombay High Court s judgment in the case of Union of India v. Godrej and Boyce Manufacturing Company reported in 1989 (44) E.L.T. 3 (Bom.) as also on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the provisional aspects of the assessments. The case law referred to by the learned Consultant, is distinguishable on the facts and the Delhi High Court Judgment in the case of Duncans Agro (supra) applies to the facts of the instant case. Accordingly, we do not find any merit in the said plea of the appellant firm. 8. As regards the confirmation of demand of duty of Rs. 1,841.76 being a differential duty in respect of two perma towers [referred to Serial No. (i) above] , the appellants stand that the Commissioner has accepted that the allegation in the show cause notice that the said perma towers were clandestinely removed without payment of duty, was not correct. However, in spite of such a finding, he has raised the demand of Rs. 1,841.76 on the allegation of under-valuation although such an allegation was not raised in the show cause notice or at any stage thereafter. On going through the relevant papers, we find that the allegation in the notice was only for clandestine removal, as rightly pointed out by the learned Consultant. The impugned Order has, thus, travelled beyond the scope of the show cause notice by confirming the demand on altogether a new issue which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants had not disclosed the sales price of the goods in the price-list, but had declared the value after deducting all the expenses on their own. 11. Shri R.K. Roy, learned JDR for the Revenue supported the reasoning of the adjudicating authority and submitted that since the appellant firm was engaged in the mal-practice and were manoeuvering to declare the wrong sales price in the price-list, the deduction admissible under the law should also not be made available to them. 12. We observe that though the appellant firm had engaged itself in the mal-practice and had not disclosed the full and complete facts to the Department, nevertheless, the deduction which is otherwise available to them under the law cannot be denied. The appellants have claimed deductions on account of Excise duty and freight only, which are admissible ones. Accordingly, we allow them these deductions and direct the authorities below to re-quantify the demand of duty in respect of 194 perma towers after arriving at the assessable value by extending the benefit of deductions on account of Excise duty and Freight. 13. As regards the confirmation of demand of duty of Rs. 82,986.16 in respect of 33 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on this point. Demand of duty of 33 perma towers has been confirmed by the adjudicating authority by observing that the appellants have not been able to produce any evidence on record to show that the goods in question have been manufactured by M/s. Unifab. No such evidence of the goods having been manufactured by M/s. Unifab, has been produced even before us. Presuming for a second that the goods have been manufactured by M/s. Unifab. Even then, the appellants stand does not hold good inasmuch as it has already been held by this Bench that M/s. Unifab Engineers are a dummy company of the appellant firm. The appellants contention that the said judgment would apply, only for the period relevant in that case, is not acceptable inasmuch as once a Unit is held to be dummy of another, the decision continues for all the periods to come unless the appellants show some change in circumstances to arrive at a different conclusion. The onus cannot be placed upon the Revenue to show that the same facts and circumstances of the case are continuing for all points of time, subsequent to the said judgment or prior to the said judgment and there cannot be different allegation for different per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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