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TMI Blog2006 (7) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Appeal dismissed. - 6394 of 2004 - - - Dated:- 19-7-2006 - Arijit Pasayat and S.H. Kapadia, JJ. [Judgment per : S.H. Kapadia, J.]. - Civil Appeal No. 6394 of 2004 : This civil appeal is filed under Section 35L(b) of Central Excise Act, 1944 against the order dated 16-6-2004 passed by the Customs, Excise Service Tax Appellate Tribunal (for short "the CESTAT"), New Delhi in Appeal No. E/3857/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACE Industries was a division of the assessee and that division was dealing in spare parts of the mobile cranes. The department further found that no manufacturing activity took place at the premises of ACE Industries. On 11-6-1999 the proprietor of ACE Industries was examined. His statement under Section 14 of the 1944 Act was recorded in which he confessed that no manufacturing activity was being undertaken at the premises occupied by ACE Industries, and that the entire set up was a devise to evade duty and, at the same time, to avail of the benefit of exemption Notification No. 8/99, dated 28-2-1999. He further confessed that the mobile cranes in question were actually manufactured by the assessee and not by ACE Industries. 5. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Accordingly, the assessee seeks refund. 7 Aggrieved by the decisions of the appellate authority, the department went in appeal to the Tribunal i.e. CESTAT. We have perused the memo of appeal. The only ground taken in the memo of appeal is that the judgment of this court in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Limited, reported in 2002 (144) E.L.T. 3 was pending reconsideration by this court vide Review Petition (C) No. 75 of 2003 and, therefore, the appellate authority should not have followed the judgment of this court in Maruti Udyog Limited (supra). In this connection, the department placed reliance on the Circular issued by the Central Board of Excise and Customs bearing No. 749/65/2003-CX, dated 26-9-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellate authority has held that the price charged by the assessee should be treated as cum-duty price and accordingly reduced the assessable value from Rs. 26,63,440/- fixed by the adjudicating authority to Rs. 22,09,827/- Against the order of the appellate authority the department filed an appeal only on the ground that the decision of this Court in Maruti Udyog Ltd. (supra) was pending re-consideration vide Review Petition (C) No. 75/2003. In this connection, the department placed reliance on the Board circular No. 749/65/2003-CX dated 26-9-2003, which is quoted hereinbelow : "Circular No. 749/65/2003-CX., dated 26-9-2003 F. No. 387/67/99-JC Government of India Ministry of Finance (Department of Revenue) Central Board of Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deemed to include the duty payable on the goods, Board has taken a view that the amended provision will apply only prospectively and the old cases will have to be pursued as per the provisions of law prevailing at the relevant time. It is requested that the contents of this Circular may be brought to the notice of all the Commissioners under your charge for necessary action at their end." 12. It is important to note that the Review Petition preferred by the department against the judgment of this Court in Maruti Udyog Ltd. (supra) stood dismissed on 9-12-2004 and accordingly, the Central Board of Excise Customs withdrew its circular dated 26-9-2003 quoted hereinabove and issued a circular no. 803/36/2004-CX dated 27-12-2004. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruti Udyog Ltd. (supra) 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. 14. In the circumstances, on the facts of this case, there is no merit in this civil appeal and the same is dismissed. Civil Appeal Nos. 2380/2005, 2967-2969/2005, 2970/2005, 3481/2004, 3724/2005, 385/2004, 4909/2004, 6348-6350/2004, 6523/2004 AND 7662/2004 : 15. In view of the decision in Civil Appeal No. 6394/2004 above, these appeals stand dismissed. 16. There will be no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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