9911796707
TMI Blog2006 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... nt time, prior to the year 2000. 3. The facts arising in this appeal are as follows: 3.1 The assessee (respondent) floated a non-functional dummy unit in the name of ACE Industries to evade excise duty on the mobile cranes being manufactured by it. The cranes were first assembled in the premises of the assessee and then dismantled into semi-knocked down condition for re-assembly. The same were cleared without payment of duty by wrongly availing benefit of exemption available to small scale units in the name of ACE industries. The assessee had manufactured three cranes valued at Rs. 26, 63,400/- involving excise duty of Rs. 4,10,144/-. By a show cause notice dated 3.11.1999, the Additional Commissioner of Central Excise, Faridabad called u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds redemption fine in lieu of confiscation. 3.3 Being aggrieved by the impugned order of the adjudicating authority, the assessee moved an appeal before the Commissioner (Appeals). By the impugned decision the appellate authority held that, ACE Industries was non-functional unit created by the assessee to evade excise duty and claim exemption as a small scale unit; that the said cranes were manufactured by the assessee but they were cleared in the name of ACE Industries and, therefore, there was a clear violation and evasion of duty under Rule 173Q of the Central Excise Rules. The appellate authority further recorded that the assessee had paid the duty pursuant to the order of the adjudicating authority. On account of the said evasion, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory appeal under Section 35L(b) of the 1944 Act. At this stage, it is important to note that the Civil Appeal filed by the department before this Court is dated 27.8.2004. In the civil appeal, the department has once again submitted that in view of the Circular No. 749/65 2003-CX. dated 26.9.2003** of the Central Board of Excise & Customs, New Delhi the appellate authority had erred in fixing the assessable value on the, basis of cum-duty price particularly when the matter was Pending reconsideration in this Court vide Review Petition (C) No.75/2003. At this stage, we may point out that the above review petition has since been dismissed and the Circular dated 26.9.2003 has been withdrawn by the Central Board vide Circular dated 27.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of CCE, Delhi v. Maruti Udyog Ltd. [2002 (141) ELT 3 (SC)]. Vide the said judgment, appeals filed by the Department were dismissed by the Hon'ble Supreme Court, upholding that the sale price realised by the assessee is to be regarded as inclusive of excise duty and therefore, in arriving at the excisable value of the goods, the element of duty which is payable is to be excluded. In this regard, it is to be informed that against the above said judgments of the Hon'ble Supreme Court, Review Petitions have been filed by the Department and the Hon'ble Supreme Court has ordered for issue of notice. It is therefore, requested that the cases pending for adjudication and remanded on this issue may be kept pending in the Call Book till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cum-duty price regarding Kind attention is invited to Board's Circular No. 749/65/2003- CX., dated 26-9-2003 [2003 (157) E.L.T. T27] issued from above file. The Hon'ble Supreme Court vide its Order dated 9-12-2004 has dismissed the Review Petition (C) No. 75 of 2003 in Civil Appeal No. 3783 of 2000 and other related matters filed by the Department. Copy of the judgment is enclosed [See: 2004 (179) ELT A 102]. In view of above the above Circular dated 26-9-2003 is hereby withdrawn. It is requested that this may be brought to notice of all concerned for taking action accordingly." 8. In the above circumstances, we do not wish to go into the factual issue particularly, when no such plea was taken by the department in the appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
