2006 (7) TMI 2 - SC - Central Excise

Computation of assessable value of mobile cranes under Section 4(4)(d) of the Central Excise 1944 as it stood at the relevant time, prior to the year 2000? Held that - we do not wish to go into the factual issue particularly, when no such plea was taken by the department in the appeal before the Tribunal and before this Court in the present Civil Appeal. We have gone through the grounds mentioned in the memo of appeal filed by the department before the Tribunal and we have also gone through the grounds mentioned in the civil appeal filed by the department before this Court. As stated above, the only ground taken in both the above appeals by the department was that the judgment of this Court in Maruti Udyog Ltd. (2002 (2) TMI 101 - Supreme Court) was pending re-consideration vide Review Petition (C) No. 75/2003. The question as to non-applicability of the judgment of this Court in Maruti Udyog Ltd. (supra) to the present case is not reflected in the appeal memos before the Tribunal and in the civil appeal and, therefore, we refrain from examining the factual conspectus of the case. In the circumstances, on the facts of this case, there is no merit in this civil appeal

Issues:
Computation of assessable value of mobile cranes under Section 4(4)(d) of the Central Excise Act, 1944.

Analysis:
The case involved the computation of the assessable value of mobile cranes under Section 4(4)(d) of the Central Excise Act, 1944. The appellant was accused of floating a non-functional dummy unit to evade excise duty on mobile cranes. The unit was alleged to have been created to wrongly avail exemption benefits meant for small scale units. The department issued a show cause notice demanding excise duty and penalty. The department found that the unit was non-functional and a device to evade duty. The adjudicating authority ordered confiscation and appropriation of funds from the bank guarantee towards redemption fine. The appellate authority held that the unit was created to evade excise duty and that the cranes were actually manufactured by the appellant but cleared in the unit's name, leading to duty evasion under Rule 173Q of the Central Excise Rules. The appellate authority reduced the assessable value based on the cum-duty price, resulting in a reduced liability for the appellant. The department appealed to the Tribunal, arguing that a previous judgment was pending reconsideration, but the appeal was dismissed in line with the prior judgment. The department then appealed to the Supreme Court, reiterating the argument about the pending review of the previous judgment. However, the Supreme Court found no merit in the appeal and dismissed it, noting that the factual issue was not raised in the appeals before the lower courts.

The Supreme Court declined to examine the question of non-applicability of a previous judgment to the case, as the department did not raise this issue in the appeals before the lower courts or the Supreme Court. The Court noted that the department's grounds for appeal focused solely on the pending review of the previous judgment. As the review petition against the previous judgment had been dismissed, and the Circular relied upon by the department had been withdrawn, the Court found no merit in the department's appeal. Consequently, the civil appeal was dismissed by the Supreme Court.

In conclusion, the Supreme Court dismissed the civil appeal filed by the department, as the factual issue regarding the applicability of a previous judgment was not raised in the lower courts or before the Supreme Court. The Court noted that the review petition against the previous judgment had been dismissed, and the Circular relied upon by the department had been withdrawn. Therefore, the Court found no merit in the department's appeal and upheld the decision of the lower courts.

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