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TMI BlogPlace of removal --- Section 4of CEA, 1944 ; and Penalty leviable --- Section 11AC of CEA, 1944X X X X Extracts X X X X X X X X Extracts X X X X ..... her it may be noted that the CEGAT has given an interpretation of Section 11AC taking a view that the penalty equivalent to the duty determined, provided therein is the maximum limit and it is not mandatory that in all such cases maximum penalty should be imposed, is not acceptable to the Department. A civil appeal against this part of this order has been filed in the Supreme Court. The said CA of the department (bearing No.D.21121/1999) has also been admitted. (It is understood that the assessee M/s Escorts JCB has also challenged this decision vide their CA No. 7230/99). For information please. THE CUSTOMS, EXCISE GOLD (CONTROL) APPELLATE TRIBUNAL West Block No.2, R.K. Puram, New Delhi - 110 066 Appeal No.E/2800/98-A Dated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods at the place where it was sold should be the basis for assessment to duty under Central Excise Act. Assessments were not made taking note of the said value upto the date of inspection by the Authorities. It was also found that towards transit insurance charges .40% of the invoice value was realised while .13% alone was actually spent toward insurance charges. On this ground show cause notice dated 24.3.98 was issued to the appellant calling upon them why - (i) Central Excise duty amounting to Rs. 29,65,532 on value of Rs. 2,61,60,197 (as per details given in Annexure V VI), not included in the assessable value should not be demanded from them under Rule 9(2) of the Central Excise Rules, 1944 read with Section 11 A of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid amount forthwith together with interest leviable as per law. (ii) I confirm the Central Excise duty amounting to Rs.98,219/- (Rupees ninety eight thousand two hundred nineteen only) voluntarily debited by the party on 18.10.97 as correctly paid under Rule 9(2) of the Central Excise Rules read with Section 11A of the Central Excise Act, 1944. (iii) I also impose a penalty of Rs.30,63,751 (Rupees thirty lakhs sixty three thousand seven hundred fifty one only) on M/s Escorts (JCB) Ltd. 23/7, Mathura Road, Ballabgarh (Faridabad) under section 11AC of the Central Excise Act, 1944. 3. Learned Representative representing the appellant raised three contentions before us. The first one is that sale of the goods took place at the factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to duty. So, the question that arises for consideration is whether property in the goods sold did, in fact, pass from the appellant firm to the buyer when the goods left the factory gate. It is an admitted case that the appellant got the goods insured when it was sent to the purchaser. Policy was taken in the name of the appellant. In the course of transit if the goods are lost, it is conceded before us, insurance company was to reimburse the appellant. Insurance company was reimbursing the appellant only because the appellant continued to have the property in the goods which were in transit. In this view of the matter it can be said that thought the goods were in transit, the appellant continued to be the owner of the goods. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice value towards insurance and utilising only .13%,the Department has taken the view that unused portion must be liable for excise duty. It was on this basis that the Commissioner in the impugned order imposed central excise duty amounting to Rs.98,219. We are not in a position to support this part of the order in view of the Tribunals's decision in Sri Kaliswari Fireworks Vs. CCE, Madurai 1998 (98) ELT 93. In that decision this Tribunal observed: 3. The show cause notice proceeds merely on the ground that the appellant collected 1% of the price as insurance charges and paid much less to the insurer. The show cause notice did not allege any deliberate depression of the price by adjusting a part of the price as transit insurance charges. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose lesser penalty. On the facts and circumstances of the case we feel that a lesser amount is to be imposed as penalty on the appellants. We reduce the penalty to Rs. 10 lakhs. 8. In the result we dispose of this appeal by confirming the order of the Commissioner imposing a duty of Rs.29,65,532 under Rule 9(2) of the Central Excise Rules, 1944 read with section 11A of the Act, set aside that part of the order which imposed duty amounting to Rs.98,219 and reduce the penalty to Rs. 10 lakhs under section 11AC of the Act. 9. Subject to, above modification, the appeal is disposed of in the above terms. - Circular - Trade Notice - Public Notice - Instructions - Office orders Tax Management India - taxmanagementindia - taxmanagement - taxm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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