9911796707
TMI Blog2005 (5) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Central Excise Rules, 1944, and without disclosing that M/s. Teksons Cooling Systems Pvt Ltd., Jamshedpur, is the subsidiary company of M/s. Tekson Ltd., Thane. The issue, therefore, arises for consideration is as to whether M/s. Tekson Ltd. is related person of M/s. Teksons Cooling Systems Pvt. Ltd. in terms of Section 4 (4)(c) of the Central Excise Act, 1944 and were required to pay Central Excise duty on value determined as per Section 4 (1)(b) of Central Excise Act, 1944 read with Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975. 2.For the purpose of reference Sections 4(1)(a), 4(1)(b), 4(4)(c) of Central Excise Act, 1944, and Rule 6(b)(ii) and Rule 6(c)(ii) of Central Excise Valuation Rules, 1975 are reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1956 defines holding and subsidiary company as under: - Meaning of Holding Company and 4. Subsidiary Company (i) For the purpose of this Act, the company shall, subject to provisions of sub-section (3),(3), be deemed to be subsidiary of another if, but only if - (a) That other controls the composition of its board of director, or (b) That other - (i) where the first mentioned company is an existing company in respect of which the holders of preference shares issued before the commencement of this Act have the same voting rights in all respect a holder of equity share, exercise or controls more than half of the total voting power of such company, (ii) where the first mentioned company is any other company, holds more tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Tekson Ltd., Thane and M/s. Tekson Ltd., Thane is holding company of M/s. Teksons Cooling Systems Pvt. Ltd., Jamshedpur during the relevant period that is during 1994-1995 - 1999-2000. The period in dispute involved in the present case is from February, 1996 to March, 2000. 4.In view of the aforesaid provisions, the Department has calculated the short payment of duty as given in Annexure A to the show cause notice following the Board Circular No. 257/91/1996-CX., dated 30-10-1996. 5.The appellant has relied on the various decisions such as Atic Industries reported in 1984 (17) E.L.T. 323 (S.C.), Dawn Apparels Ltd. v. UOI - 1989 (43) E.L.T. 401 (Bom.), International Computer India Manufacturing Company Ltd. reported in 1989 (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when BHEL committed default in paying the duties as adjudicated upon by the earlier orders. Commissioner proceeded against the appellant under Rule 209A, which can apply only to a person who dealt with the contraband article, not as manufacturer. Appellant had no dealings with the contraband article otherwise than in his official capacity as an employee of BHEL, the manufacturer. So, by no stretch of imagination can the appellant fall within the purview of Rule 209A of the Central Excise Rules. Therefore, the Commissioner was clearly in error in thinking that penalty contemplated by Rule 209A could be imposed on the appellant who was only an employee of the manufacturer, namely BHEL. 7.The finding of the Commissioner with regard to Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excise matters. Being a qualified person it cannot be said that he is an innocent person. Moreover, ignorance of law is no excuse. Therefore, we do not find that he is not responsible for undervaluation and thus evasion of the Central Excise duty. However, since he has left the company and claims that he is not in regular employment somewhere-else but doing the work on ad hoc basis, we can only take a sympathetic view for him and we accordingly reduce the penalty imposed on him from Rs. 3 lakhs to Rs. 1 lakh. Except the above, we do not find any reasons to interfere with the order passed by the Commissioner. We, therefore, dismiss the appeals filed by the appellants. (Pronounced in Court on 17-5-2005) - - TaxTMI - TMITax - Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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