TMI Blog2006 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... he only ground taken in both the above appeals by the department was that the judgment of this Court in Maruti Udyog Ltd. (2002 (2) TMI 101 - Supreme Court) was pending re-consideration vide Review Petition (C) No. 75/2003. The question as to non-applicability of the judgment of this Court in Maruti Udyog Ltd. (supra) to the present case is not reflected in the appeal memos before the Tribunal and in the civil appeal and, therefore, we refrain from examining the factual conspectus of the case. In the circumstances, on the facts of this case, there is no merit in this civil appeal - Civil Appeal No. 6394 of 2004 & Others - - - Dated:- 19-7-2006 - This civil appeal is filed under Section 35L(b) of Central Excise Act, 1944 against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eam of officers from the department visited the premises of ACE Industries. On verification of the records, the department found that ACE Industries was a division of the assessee and vision was dealing in spare parts of the mobile cranes. The department r found that no manufacturing activity took place at the premises of ACE Industries. On 11.6.1999 the proprietor of ACE Industries was exam- statement under Section 14 of the 1944 Act was recorded in which he confessed that no manufacturing activity was being undertaken at the occupied by ACE Industries, and that the entire set up was a devise to evade duty and, at the same time, to avail of the benefit of exemption notification no. 8/99 dated 28.2.1999. He further confessed that the mobile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - and correspondingly the liability of the assessee stood reduced from Rs. 4,10,144/- to Rs. 3,53,573/-. Accordingly, the assessee seeks refund. 3.4 Aggrieved by the decisions of the appellate authority, the department: went in appeal to the Tribunal i.e. CESTAT. We have perused the memo of appeal. The only ground taken in the memo of appeal is that the judgment of this court in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Limited. reported in 2002 (141) ELT 3* was pending reconsideration by this court vide Review Petition (C) No.75 of 2003 and, therefore, the appellate authority should not have followed the judgment of this court in Maruti Udyog Limited (supra). In this connection, the department placed reliance on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (supra). 6. We are not prepared to examine this question. As stated above, vide order dated 22.9.2003, the appellate authority has held that the price charged by the assessee should be treated as cum-duty price and accordingly reduced the assessable value from Rs. 26,63,440/- fixed by the adjudicating authority to Rs. 22,09,827/- Against the order of the appellate authority the department filed an appeal only on the ground that the decision of this Court in Maruti Udyog Ltd. (supra) was pending re-consideration vide Review Petition (C) No. 75/2003. In this connection, the department placed reliance on the Board Circular No. 749/65/2003-CX dated 26.9.2003*, which is quoted herein below: "Circular No.749/ 65/2003-CX., dated 26-9-2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended by insertion of an Explanation to Section 4(1) to the effect that the price-cum-duty shall be deemed to include the duty payable on the goods, Board has taken a view that the amended provision will apply only prospectively and the old cases will have to be pursued as per the provisions of law prevailing at the relevant time. It is requested that the contents of this Circular may be brought to the notice of all the Commissioners under your charge for necessary action at their end." 7. It is important to note that the Review Petition preferred by the department against the judgment of this Court in Maruti Udyog Ltd. (supra) stood dismissed on 9.12.2004 and accordingly, the Central Board of Excise Customs withdrew its Circular d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound taken in both the above appeals by the department was that the judgment of this Court in Maruti Udyog Ltd. (supra) was pending re-consideration vide Review Petition (C) No. 75/2003. The question as to non-applicability of the judgment of this Court in Maruti Udyog Ltd. (supra) to the present case is not reflected in the appeal memos before the Tribunal and in the civil appeal and, therefore, we refrain from examining the factual conspectus of the case. 9. In the circumstances, on the facts of this case, there is no merit in this civil appeal and the same is dismissed. 10. In view of the decision in Civil Appeal No. 6394/2004 above, these appeals stand dismissed. 11. There will be no order as to costs in all the appeals. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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