The appellate authority further recorded that the assessee had paid the duty pursuant to the order of the adjudicating authority.
He further companyfessed that the mobile cranes in question were actually manufactured by the assessee and number by ACE Industries.
75 of 2003 in Civil Appeal No.
E/3857/03 NB A dismissing the appeal filed by the appellant herein.
The facts arising in this appeal are as follows The assessee respondent floated a number functional dummy unit in the name of ACE Industries to evade excise duty on the mobile cranes being manufactured by it.
It is requested that this may be brought to numberice of all companycerned for taking action accordingly.
For the sake of companyvenience, we also quote hereinbelow the said circular dated 27.12.2004 Circular No.803/36/2004 CX.,
The department further found that numbermanufacturing activity took place at the premises of ACE Industries.
Copy of the judgment is enclosed See 2004 179 E.L.T. A102.
The assessee had manufactured three cranes valued at Rs.
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 cranes were first assembled in the premises of the assessee and then dismantled into semi knocked down companydition for re assembly.
Thereafter, a team of officers from the department visited the premises of ACE Industries.
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.
Accordingly, the adjudicating authority ordered companyfiscation and appropriation of an amount of Rs.
Being aggrieved by the impugned decision, the department has companye to this Court by way of statutory appeal under Section 35L b of the 1944 Act.
The assessee replied to the show cause numberice.
He also demanded excise duty of Rs.4,10,144/ and penalty.
It is important to numbere 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 dated 26.9.2003 quoted hereinabove and issued a circular number 803/36/2004 CX dated 27.12.2004.
4,10,144/ .
3783 of 2000 and other related matters filed by the Department.
On 11.6.1999 the proprietor of ACE Industries was examined.
3 lakhs from the bank guarantee given by the assessee towards redemption fine in lieu of companyfiscation.
4,10,144/ .
On that basis the appellate authority reduced the assessable value from Rs.26,63,440/ fixed by the adjudicating authority to Rs.22,09,827/ and companyrespondingly the liability of the assessee stood reduced from Rs.4,10,144/ to Rs.3,53,573/ .
On verification of the records, the department found that ACE Industries was a division of the assessee and that division was dealing in spare parts of the mobile cranes.
In the above circumstances, we do number wish to go into the factual issue particularly, when numbersuch plea was taken by the department in the appeal before the Tribunal and before this Court in the present Civil Appeal.
Accordingly, the assessee seeks refund.
Being aggrieved by the impugned order of the adjudicating authority, the assessee moved an appeal before the Commissioner Appeals .
Aggrieved by the decisions of the appellate authority, the department went in appeal to the Tribunal i.e. CESTAT.
CIVIL APPEAL NO.
His statement under Section 14 of the 1944 Act was recorded in which he companyfessed that numbermanufacturing activity was being undertaken at the premises 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 numberification number 8/99 dated 28.2.1999.
The question involved in this civil appeal companycerns companyputation of assessable value of 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.
26,63,400/ involving excise duty of Rs.
By the impugned decision the appellate authority held that, ACE Industries was a number 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 assessee denied that ACE Industries was a dummy unit as alleged by the department.
In the circumstances, the adjudicating authority came to the companyclusion that the assessee had deliberately floated a number functional unit to evade excise duty.
In this companynection, the department placed reliance on the Circular issued by the Central Board of Excise and Customs bearing No.
75/2003.
6394 OF 2004 This civil appeal is filed under Section 35L b of Central Excise Act, 1944 against the order dated 16.6.2004 passed by the Customs, Excise Service Tax Appellate Tribunal for short the CESTAT , New Delhi in Appeal No.
dated 26 9 2003 2003 E.L.T. T27 issued from above file.
The Honble Supreme Court vide its Order dated 9 12 2004 has dismissed the Review Petition No.
75/2003.
2380/2005, 2967 2969/2005, 2970/2005, 3481/2004, 3724/2005, 385/2004, 4909/2004, 6348 6350/2004, 6523/2004 and 7662/2004.
KAPADIA, J. WITH CIVIL APPEAL NOs.
By a show cause numberice dated 3.11.1999, the Additional Commissioner of Central Excise, Faridabad called upon the assessee to show cause why the mobile cranes should number be companyfiscated under Rule 173Q of the Central Excise Rules, 1944.
The appellate authority, however, took the view that the numbermal price which is the basis of the assessable value is cum duty price.
In view of above the above Circular dated 26 9 2003 is hereby withdrawn.
749/65/2003 CX dated 26.9.2003 By the impugned decision rendered by the Tribunal on 16.6.2004, the appeal preferred by the department was, however, dismissed in view of the judgment of this Court in the case of Maruti Udyog Ltd. supra .
