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TMI Blog2006 (7) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... mobile cranes under Section 4(4)(d) of the Central Excise Act, 1944 (for short "the 1944 Act") as it stood at the relevant time, prior to the year 2000. 3. The facts arising in this appeal are as follows : 4. 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, the adjudicating authority ordered confiscation and appropriation of an amount of Rs. 3 lakhs from the bank guarantee given by the assessee towards redemption fine in lieu of confiscation. 6. 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 a non-functional unit created by the assessee to evade excise duty and claimed 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in the case of Maruti Udyog Ltd. (supra). 9. Being aggrieved by the impugned decision, the department has come to this Court by way of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in the case of CCE, Madurai v. T.V.S. Srichakra Ltd. [2002 (142) E.L.T. A279 (S.C.)] and the judgment dated 27-02-2002 in the case of CCE, Delhi v. Maruti Udyog Ltd. [2002 (141) E.L.T. 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 issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject : Valuation of goods for Central Excise purpose - 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) E.L.T. A102]. 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." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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