TMI Blog2000 (7) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... ce related to the designing and engineering charges realised by the appellants pursuant to turnkey projects entered into by the appellants with M/s. Gujarat High Tech Cements Ltd. (GHTCL). 4.The question was whether 'designing and engineering charges' realised by the appellants were includible in the assessable value or not. 5.Ld. Consultant submits that the appellants had undertaken fabrication work on belt conveyors, bucket elevators, vibrators, feeders and chain conveyors falling under erstwhile TI 68 to M/s. Gujarat High Tech Cement Ltd. (GHTCL) and Universal Glass, Sahibabad. The fabrication work was undertaken as per specific requirement mentioned in the purchase orders of the parties. As regards 'designing and engineering charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the applicants in the present appeals. Ld. Consultant relied on decision of the Tribunal, namely, Cipta Coated Steels Ltd. v. CCE, Aurangabad reported in 1999 (113) E.L.T. 490 in support of his contention. It was further contended that the penalties imposed on the two appellants under Rule 209A were not legal and valid for the reason that the Department has not shown the existence of mens rea or guilty mind on the part of the two appellants. Further the show cause notices were issued pursuant to Audit Reports and not on the basis of any investigations. The authorities below had also failed to distinguish between pre-manufacturing activities and post-manufacturing activities. The GA drawings (General Arrangement Drawing) supplied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Rule 173C and no price list was required to be filed by them in view of the CBEC Circular No. 73/88 dated 11-10-88. When there was no legal obligation to supply the said details, no allegation suppression of facts for purposes of proviso to Section 11A(1) of the Central Excise Act, 1944 was maintainable. Ld. Consultant therefore prayed for setting aside of the impugned order. 6.Ld. JDR reiterating the findings in the impugned order submitted that there were a number of decisions of the Tribunal holding that charges relating to drawing, designing and technical specifications are includible in the assessable value of the equipment/products. Reliance was placed on the three decisions of the Tribunal, namely, (a) 1990 (48) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of the contract entered into between the appellants and M/s. Gujarat High Tech Cement Ltd. dated 28-8-86, the appellants were providing screw narrow bucket allevators and air slides. In sub-para 2.4 of the said letter, M/s. GHTCL had stated "additionally we will pay you the design and engineering charges for the above equipment, a total amount of Rs. 3.50 lakhs". In para 4.2 of the aforesaid letter it has been provided as under : "Engineering and Design 5% (a) initial advance of Rs. 0.175 Lakhs; (b) Prorata payments as under for completion of engineering and design activity of respective equipment/item : (i) 50% G.A. drawings submission of approval of Consultant/GHTCL and also furnishing data for customer boughtouts. (ii) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-para (ii) provides for 30% payment on load data drawings for civil construction. On examination of para 4.2 it would appear that only 'load data' drawing relates to civil construction and the rest of the payments relate to GA drawings which go with the manufacturing activity and designing activity of the equipments supplied by the appellant. We are therefore unable to find any infirmity in so far as the duty demand on GA drawings are concerned. However, to the extent the aforesaid excess collection of dutiable charges have not been disclosed to the Department (by not filing the invoice raised by them along with RT 12 returns), there is misuse of the concession given under Rule 173C (ii). The invoking of the extended period under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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