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TMI Blog2006 (3) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... se Authorities, Vasai Divn. And paying Central Excise duty on the bodies built on the chassis supplied by the manufacturer viz. TELCO and cash vans fabricated by both units were mainly of two types, the first type cash vans were fabricated on TATA 407 chassis and the second type was fabricated on Mahindra & Mahindra pick up chassis that may be either single cabin or double cabin. The department has combined i.e. first type appeared to merit classification under CH 87.03 (without SSI benefit) of CET whereas the second one appeared to be classifiable under CH 87.07 (with SSI benefit). 2. The officers also found that SAPL is a private limited company with Mr. Selin D'souza, the third appellant herein and Mrs. Sigma D'souza as directors. They are husband and wife. This company was incorporated on 14th March, 2000 and commenced its business in May, 2001 and their activities were of fabrication of delivery vans, cash vans, ambulances and bus bodies on duty paid chassis. SAPL was not registered with Central Excise authorities nor has it filed any declaration with the department. NDG is a sister concern of SAPL and is a partnership concern with Mr. Selin D'souza, (the third appellant here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the period June, 2001 to March, 2003 and by and NDG during the preceding 5 years; duty liability thereon was worked out after clubbing the clearances of both the units taking into account the different duty rates & exemption limits during the respective years. Thus the duty demandable from both the units during the respective years appeared to be as under :- Year 1998-99 1999-00 2000-01 2001-02 2002-03 CSH 8707.00 8703.90 8707.00 8703.90 8707.00 8703.90 8707.00 8703.90 8707.00 8703.90 NDG 546016 - 350216 - 2115842 - 105521 879840 10400 - SAPL - - - - - - 317113 2081971 1059710 1931464 Total duty recoverable Rs. 93,98,094 5(a). The bodies fabricated by both the units falling under CH 87.07 were clubbed for the purpose of SSI benefit. It thus appeared that SAPL & NDG had contravened the following provisions of Central Excise Act, 1944 & the Rules made thereunder :- (i) Section 6 of the Act read with Rule 174 of the Central Excise Rules, 1944 and subsequently Rule 9 of the new Central Excise Rules of 2001/2002 inasmuch as, SAPL had, filed to get themselves registered with the Central Excise De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty under Rule 173Q of the Central Excise Rules, 1944 and Rule 25 of the Central Excise Rules of 2001/2002 should not be imposed on them for the violation of the aforesaid Rules; (v) The goods valued at Rs. 20,00,500/- (rupees twenty lacs five hundred only) seized vide Panchnama dated 18-2-2003 should not be confiscated under Rule 25 of the Central Excise Rules, 2002. (vi) Personal Penalty under Rule 209A of the Central Excise Rules, 1944 and Rule 26 of the Central Excise Rules of 2001/2002 should not be imposed on Shri Selin D'souza partner in M/s. Nicholas D'souza Garage and Director in M/s. Sigma Autocraft Pvt. Ltd., both owned by him. 5(b). The matter was heard and after considering the learned Commissioner [it was] found the issue to be decided by him were - (i) classification of bodies built on chassis/motor vehicles, during the period 1996 to 28-2-2000 as thereafter; (ii) classification of cash vans; (iii) Classification of ambulances; (iv) Whether value of clearances of SAPL & NDG can be clubbed for the purpose of extending/denying SSI exemption? and he found and ordered; 5(c). (i) The demand of duty amounting to Rs. 30,12,074/- (rupees thirty lakhs twelve t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 6035822 1931464 Total 12541982 4013435 (v) Also a demand of duty amounting to Rs. 13,76,823/- (rupees thirteen lakhs seventy-six thousand eight hundred twenty-three only) were confirmed on M/s. Nicholas D'souza Garage, in respect of goods cleared from their factory, after considering combined value of clearances of Rs. one crore from M/s. Nicholas D'souza Garage and M/s. Sigma Autocraft Pvt. Ltd. during the years as under :- Year Value of goods (falling under CH No. 87.07) cleared from factory of M/s. Sigma Autocraft Pvt. Ltd. in excess of Rs. one crore, considering combined aggregate value of clearances of M/s. Sigma Autocraft Pvt. Ltd. and M/s. Nicholas D'souza Garage Amount of duty @ 16% 2001-2002 1981954 317113 2002-2003 6623185 1059710 Total 8605139 1376823 (vi) Penalty of Rs. 93,98,093/- (rupees ninety-three lakhs ninety-eight thousand ninety-three only) was imposed on M/s. Nicholas D'souza Garage under Section 11AC of the Central Excise Act, 1944; (vii) Penalty of Rs. 19,000/- (rupees nineteen thousand only on Shri. Selin D'souza, partner of M/s. Nicholas D'souza Garage under provisions of Rule 209A of the Central Excise Rules, 1944 read with Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in this case. The decision relied upon by ld. advocate, would be applicable to establish the bar of limitation in this case. Demand from 22-7-2002 is not maintainable under any circumstances. 9. The chassis used for (CDV's) is "TATA 407" duly paid chassis and duty on the said chassis is paid under Heading 87.06.42; from the definition of the Entry 8703, vehicles there under have to be fabricated/built in with bodies on chassis falling under 8706.31 or 8706.39 & cannot be on chassis falling under 8706.42. Transfer of cash/valuables by CDV's would be transport of goods; the CDV's have been registered by the State Motor Vehicles Department as per certificates in record, as "Goods Carriage Vehicles", the vehicles are specially designed with Bullet Proof Glass and small windows, and may incidentally carry security guards; it cannot be said to be specifically designed for passenger transportation or for carriage of persons and cannot be held to be vehicles/designed for carriage of passengers. The finding of the learned Commissioner that Security Guards travel in the same vehicle and thus CDV is not exclusively for transport of cash and can carry six such persons cannot be a reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944. Rule 25 Central Excise Rules, 2002 read, with Section 38A of Central Excise Act, 1944 and the redemption fine of Rs. 2.00 Lakhs (rupees two lakhs only) were offered for redeeming the same. On the examination of the said order dated 28-5-2004, the Central Board of Excise and Customs found that the said order is, not legal and lawful for the following reasons : (a) Appellate Authority has confirmed the duty demand of Rs. 93,98,094/- (rupees ninety-three lakhs ninety-eight thousand ninety-four only) and imposed penalty of equal amount under Section 11AC and no interest was ordered. (b) Corrigendum dated 28-5-2004 cannot be termed as based on clerical, arithmetical or typographical errors. The case of Shri Mahaganesh Texpro Ltd., reported in 2001 (134) E.L.T. 779 (Tri.-Mum.) is relied upon wherein it was held, once Appellate Authority passed an order they had no authority to make any changes in that order unless the changes were of clerical or arithmetical nature. (c) The Board was then satisfied that the said order is not legal, proper and correct, in law. It is not also as per Boards order have been enacted vide Circular No. 502/68/99-C.E., dated 16-12-1999. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precondition therein is satisfied, which being there is no contravention on his part with respect to the goods manufactured and which goods are held liable to confiscation. We cannot find any reason to impose and arrive at any such reasons to call for a penalty. The penalty under Rule 26 are also not attracted as the same are attracted only in a situation where any person who knows or has reason to believe that the goods in question dealt with him are liable to confiscation under the Central Excise Act, 1944 and since there is no proposal for confiscation of the goods and the appellants have dealt with the goods after due declaration of penalty by Central Excise Act and in a bona fide manner, penalty under Rule 26 is not attracted. 15. Since the bar of limitation is to be upheld in favour of the appellants. Penalty liability under Section 11AC cannot be arise in the facts of this case. From the issue framed for adjudication by the learned Commissioner, it is evident that no issue for confiscation liability for any goods was framed and therefore, the present proposals in the Revenue appeal as regards to confiscation of the goods and also corrigendum issued by the Commissioner to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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