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TMI Blog1985 (3) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... ds between 1-3-1974 to 23-10-1975 with shock absorbers and/or after metallic painting and/or after chrome painting. 2. The appellants were clearing their products, (namely, mopeds) from their factory at Tirupathi. In addition to charging the values as declared in the Gate Passes, the appellants have also been recovering cost of rear shock absorbers fitted to the auto-cycles and towards labour charges for modification of frame for fitment of rear shock absorber. They have also collected labour charges for Deluxe Metallic painting and for special chrome painting of extra parts fitted to the auto cycles as per customers orders. Besides the above, they were charging amounts towards packing and forwarding and freight on equalised basis from al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were duly approved by the officers. They also stated that during the relevant period the prices of scooters were fixed under the Scooters (Distribution and Sale) Control Order, 1960 and the price so approved should be accepted as the assessable value. The mopeds had been cleared after payment of duty. The additional fittings constituted bought out components and no duty could be charged in respect of these items. They also contended that the packing charges should not be held to form part of the assessable value. The Collector of Central Excise after an enquiry passed the orders now under appeal. 4. Shri Y.G. Ramamurty, advocate, urged that the shock absorbers were fixed at the request of the customers and the price list filed by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri A.K. Jain, SDR, argued that the demand was not barred by time. He stated that the party was clearing the mopeds with rear shock absorbers and with metallic painting and packings. Separate invoices were raised and the same were not disclosed to the department till October, 1975. He relied on the ruling reported in 1983 (13) E.L.T. 966A (Tri.) = 1983 ECR 662D (CEGAT) (M/s. E. Merck (India) Pvt. Ltd., Bombay v. Collector of Central Excise, Bombay) where it was held that the goods have to be valued and assessed in the form in which they were presented for assessment at the time of their clearance from the factory. 6. As already observed, the relevant period is between 1-3-1974 and 23-10-1975 when mostly the unamended S. 4 of the Act was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. 9. Nor is there any evidence on record to enable a decision as to whether the rear shock absorbers are essential parts of the vehicle or merely accessories. 10. In the circumstances, we are thus not in a position either to take the control price as the assessable value or conclude that rear shock absorbers are really in the nature of accessories. 11. It is stated that the appellants have cleared mopeds with rear shock absorbers or metallic paintings or chrome finish only in respect of at least 5.7% of the clearances. The contention that these were merely additional fittings or improvements and were effected at the request of the customers, cannot be accepted in the absence of any evidence as to whether they were essential parts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the appellants argued that the demand is barred by time. The lower authorities have adverted to Rule 9(2) and Rule 10(1) of the Central Excise Rules, 1944. The decision of the Tribunal in 1983 (14) E.L.T. 1927 (Shriram Pistons Rings Ltd., Ghaziabad v. Collector of Central Excise, Meerut) considers the effect of these provisions in juxtaposition. It was held therein that no period of limitation is prescribed for the levy of a penalty either in terms of Rule 9(2) or Rule 173Q; just as the limitation prescribed in Sec. 468 of the Cr.P.C. is inapplicable to a prosecution under Sec. 9 of the Act. The department has claimed that there was a suppression of fact. Shri A.K. Jain stated that no time-limit has been prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.P. From the facts of the case it is clear that the appellants were removing the mopeds with these fitments as integral parts, but did not disclose them in the price lists. It is not open to them to say that the departmental officers should have verified the particulars. The liability to pay appropriate duty is on the appellants. It is reasonable to conclude that the infringement of Rule 173Q has been made out. However, considering the period involved and in the circumstances of the case, we direct that the penalty be reduced to Rs. 4,00,000/- (Rupees four lakhs only). 15. In the result, we hold that the claim for recovery of differential duty is time barred. The penalty is reduced to Rs. 4,00,000/-. Appeal is disposed of accordingly. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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