TMI Blog2004 (12) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... dit, confirming the demand on other counts and confiscating engine and its accessories with an option to redeem the same on payment of redemption fine. 2. Shri Krishna Kant, learned Advocate, submitted that M/s. Maestro Motors Ltd., Appellant no. 1, manufacture motor vehicles; that they had appointed M/s. Dolphin Motors as their distributors, who in turn, have the net work of dealers for the cars; that the searches was carried out against them on the following counts : (i) they were under-valuing the motor cars as they were collecting Rs. 50,000/- to Rs. 3 lakh over and above the price at which the goods were invoiced by them to M/s. Dolphin Motors (P) Ltd.; (ii) the discount was not being passed on by them to the deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to redeem the same on payment of a fine of Rs. 75,000/-; that, besides, the penalty of Rs. 25 lakh was imposed on Appellant no. 1 and Rs. 10 lakh each was imposed on other three Appellants; that on appeal, filed by them, the Appellate Tribunal, vide Final Order Nos. 457-460/2003 dated 28-3-2003, remanded the matter by observing as under : "Since it is the case of the Revenue itself that the cars have been directly sold to the retail customers and amounts received directly by SAL and such sales have been admitted to be retail sales by SAL, which have been found not to be sales to dealers by the learned Commissioner, we find no reason not to accept the sales in question to be retail sales. When a manufacture is effecting retail sales, no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon the decision in the case of Mittal Pipe Manufacuring Co. v. CCE, New Delhi, 2002 (146) E.L.T. 624 (T) wherein it has been held by the Tribunal that in remand proceedings, the Adjudicating Authority cannot fix penalty at amount higher than the penalty imposed prior to remand. The learned Advocate, further, submitted that as per the Final Order of the Tribunal, the Commissioner was duty bound to work out the assessable value after abating the dealers discount and other permissible deductions from cum-duty sale proceedings as received by the Appellant No. 1 of sales effected to retail customers at the factory gate; that the Tribunal has clearly held that entire sale to be retail sale and thereby clearly directed the Commissioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was no intention to evade payment of duty. 5. Mrs. K.A. Mishra, learned SDR, reiterated the findings as contained in the impugned Order. 6.1 We have considered the submissions made by both the sides. It has not been disputed by the Revenue that in the show cause notice, the appellants we're not directed to show cause as to why duty should not be demanded from them on account of advertisement charges reimbursed to them and for selling the cars at revised price. There is no force in the submissions of the learned SDR that these two charges were mentioned in para 1 of the show cause notice as the fact remains that in para 4 when the appellants were directed to show cause, they have not been asked to show cause in respect of these t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We, therefore, agree with the learned SDR that the same are liable for confiscation. We, however, agree with the learned Advocate that the redemption fine of Rs. 75,000/-, fixed by the Commissioner, is on the higher side as the total value of the engine and its accessories is only 1.50 lakh. We, therefore, reduce the redemption fine to Rs. 15,000/-. 7. The Tribunal, vide Final Order No. 457-460/2003, dated 28-3-2003 has given a specific finding that the sales by the appellant no. 1 were retail sales. The Tribunal has, therefore, after observing that when a manufacture is effecting retail sales, held that no duty could be levied on the component of dealers discount and wholesale price will have to be worked out as per the Valuation Rules. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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