TMI Blog2006 (3) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... to call for a penalty. The penalty under Rule 26 are also not attracted as the same are attracted only in a situation where any person who knows or has reason to believe that the goods in question dealt with him are liable to confiscation under the Central Excise Act, 1944 and since there is no proposal for confiscation of the goods and the appellants have dealt with the goods after due declaration of penalty by Central Excise Act and in a bona fide manner, penalty under Rule 26 is not attracted. Since the bar of limitation is to be upheld in favour of the appellants. Penalty liability u/s 11AC cannot be arise in the facts of this case. From the issue framed for adjudication by the learned Commissioner, it is evident that no issue for confiscation liability for any goods was framed and therefore, the present proposals in the Revenue appeal as regards to confiscation of the goods and also corrigendum issued by the Commissioner to be typographical, arithmetical mistake cannot be upheld. We find no reason to uphold the duty demand on merits and on limitation. The penalties cannot be sustained therefore, there is no question to arrive at any such liability. The confiscation of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e third appellant herein) and Mr. Kenith D souza are as partners, who are brothers. Both units are operating from the same plot that is owned by Mrs. Collet Nicholas D souza, mother of these two brothers. Both units used the common paint booth, common security cabin, common office, common telephone operator Mrs. Sarah Joseph attends to both the units telephone calls. Common computer is used to prepare invoices and accounts of both the companies. There are four electric meters in the name of Mrs. Collet Nicholas D souza used by both the companies who share the electric bills on the basis of the turnover. There are 3 telephone connections, 2 in the name of Late Mr. Nicholas D souza his father and one in the name of NDG used by both the units. Both the units have a common brand name viz. SIGMA that is owned by Mr. Selin D souza, Director of SAPL and partner of NDG. SAPL pays rent, Government dues for the entire plot and also there is a common store and a common storekeeper for both the units. 3. On verification of the records of both the units for the financial year i.e. 2002-2003, it was noticed that the clearances value in respect of SAPL had exceeded the exemption limit of one cror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dies and Ambulances. (ii) Rule 173B ibid inasmuch as SAPL had failed to file the classification declarations in respect of the Cash Vans, Motor Vehicle bodies and Ambulances manufactured and cleared during the aforesaid period. (iii) Rule 173C ibid inasmuch as they had failed to file the Price List declarations in respect of the Cash Vans, Motor Vehicle bodies and Ambulances manufactured and cleared by them during the aforesaid period. (iv) Rule 173G(2) read with Rule 52A ibid and subsequently Rule 11 of the Central Excise Rules, 2001/2002 inasmuch as they had failed to prepare and issue proper Central Excise Invoices in respect of the excisable goods cleared from their factory during the aforesaid period : (v) Rule 173G(3) read with Rule 54 ibid later on Rule 12 of the Central Excise Rules of 2001/2002, inasmuch as they had failed to file proper periodical returns showing the particulars of the goods manufactured and cleared from their factory. (vi) Rule 173G(4) read with Rule 53 ibid superceded by Rule 10 of the Central Excise Rules, 2001/2002 and Rule 226 ibid inasmuch as they had failed to properly account for the excisable goods in the RG 1 Register or the stock register; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bodies built on Motor vehicle/Motor vehicle chassis in respect the goods valued at ₹ 4,54,94,887/- (rupees four crores fifty-four lakhs ninety-four thousand eight hundred eighty-seven only) which was falling under CSH 8707.00 cleared by them during the period 1998 to February 2001 and the said duty demand was recovered from them alongwith interest. (ii) The demand of duty amounting to ₹ 8,79,840/- (rupees eight lakhs seventy-nine thousand eight hundred forty only) was confirmed on M/s. Nicholas D souza Garage in respect of goods valued at ₹ 27,49,788/- (rupees twenty-seven lakhs forty-nine thousand seven hundred eighty-eight only) which were classified falling under CH 87.03, cleared from their factory during the year 2001-2002 alongwith interest. (iii) The demand of duty of ₹ 1,15,921/- (rupees one lakh fifteen thousand nine hundred twenty-one only) confirmed against M/s. Nicholas D souza Garage, in respect of goods cleared from their factory, after considering combined value of clearances of Rs. one crore from M/s. Nicholas D souza Garage and M/s. Sigma Autocraft Pvt. Ltd. during the years as under :- Year Value of goods (falling under CH No. 87.07) clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold Central Excise Registration and SAPL, engaged themselves in similar activity since July, 2001. 7. The Apex Court in the case of Supreme Washers (P) Ltd. v. CCE - 2003 (151) E.L.T. 14 (S.C.) have held that Board vide Circular No. 6/92 of 29-5-1992 clubbing of clearances of a limited company and a partnership firm can be maintained. The allegation that SAPL was started to avail additional exemption, as made, and is a dummy unit cannot survive, since the clearance of SAPL during the year 2002-03 are only ₹ 2,87,500/- (rupees two lakhs eighty-seven thousand five hundred only), hardly even three percent of the exemption limit. The entire assumption of the Department and the findings are baseless. 8. The classification of the impugned goods i.e. Cash Delivery Vans (hereafter referred to as CDV) was claimed by NDG under Head 8704 with benefit of notification RT12 s were filed and finalized by the Range Officer. Therefore, the reliance on the case law, particularly Cast Metal Industries Pvt. Ltd. v. CCE - 2003 (162) E.L.T. 498 (T), as regards on no intention of evading payment of duty to be available in the case is well founded. If the claim for classification was not available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Commissioner can therefore, be not upheld. 10. The appellants case that other type of cash vans are results of conversion of duty paid Motor vehicles, i.e., Mahindra and Mahindra jeeps and Bolero Camper Models by suitable modification of the body they already possess when brought into the premises of the appellants is considered. The provisions of Note 3 of Chapter 87 of CETA, 1985, introduced in April, 2001 would indicate, that in such cases the Body Modification/Fabrication being done on a duty paid Motor Vehicles with body and cab and not simplicitor the building up of a body on duty paid chassis as was the case in Starline Motor Industries Ltd. v. CCE, Belgaum - 2001 (133) E.L.T. 614 (Tri.-Bang.) relied by Revenue, after 2001 and such activity of conversion/modification of body would not fall under the Tariff Entry 8707. The classification arrived at in said cases under 87.07 is erroneous in violation of chapter notes and is not being upheld. The reliance of the decision in the case of Laminated Packaging (P) Ltd. (1990 (49) E.L.T. 326 (S.C.) by Revenue, will not help in this case, especially after the period of amendment of chapter note to Chapter 87 in April, 2001. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants in this connection submit that once the Board has considered the Corrigendum dated 28-5-2004 to be not on typographical errors, therefore, the corrigendum should be set aside. They also submit that there is no case of confiscation of the goods and duty thereon, no case for interest. It is found that to the order issued vide this corrigendum dated 28-5-2004 wherein confiscation of goods have been arrived at in conflict of Boards Circular No. 502/68/99-C.E., dated 16-12-1999. The Corrigendum is therefore, required to be set aside on this ground. 13. The appellants relied upon the fact that the confiscation of vehicle being ordered by the present order of confiscation without notice to the owners of the vehicle was not legal nor permissible rely on the case of Veritas Exports v. Union of India - 2005 (184) E.L.T. 341 (Bom.). We find force in this submission since both sides agree that the order in not legal and proper in law. The confiscation of vehicles, therefore, cannot be sustained. Nor they be liable to confiscation and duty demands on grounds of classification and duty demand on clubbing which is not being upheld. 14. The appellants submit that the show cause notice on pag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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