9911796707
TMI Blog2004 (11) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the department, proper entry in the RG I register was not made, there is no charge that the appellants had removed the goods without payment of duty. Under these circumstances, the Commissioner s Order of confiscation of the goods is not sustainable in view of the settled case law on the subject. As regards freight , the appellant is entitled to claim abatement of the actuals only. Claiming abatement in excess of the actual freight is not permissible. In view of the clear findings of the Commissioner on this aspect, the appellant is liable to pay the differential duty of Rs. 1,85,916/-. The Commissioner s order in this respect is confirmed. As we have already confirmed the finding of the Commissioner that the appellant and M/s. TAPL are related, the price at which the appellants cleared the goods to M/s. TAPL cannot be accepted. It is seen from the Order that sales to independent buyers are at a price higher than those charged to TAPL, hence the price of goods sold to independent buyers should be taken for calculation of the duty. In case, the price to independent buyer is not available, the price at which M/s TAPL sold the goods to other buyers should be taken for cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evading Central Excise duty, investigations were conducted. The appellants were clearing the goods manufactured by them through M/s. Track Air Conditioners (P) Ltd. Bangalore (Known as TAPL) having sales offices at Bangalore, Hyderabad and Chennai. The management of both M/s. TASL & M/s. TAPL was common and they were controlled by one Shri Anil Dev Director of both the companies. The purchase orders were obtained by splitting the order into two parts namely, Part A and Part B. Part A of the order is addressed to M/s. TASL for supply of equipment and part B would be addressed to M/s. TAPL for ancillary works/ installation/erection/ commissioning of the equipment. The equipments were also cleared to M/s. TAPL adopting lesser assessable value when compared with the price at which they were cleared to the other customers. During investigation, the officers found that one evaporator unit and three condenser units in fully manufactured condition were not accounted in the statutory RG I Register. The goods valued at Rs. 70,787/- were seized on 27-5-1998. Some shortages of goods were also noticed. A show cause notice dated 23-11-1998 was issued for various violations of the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est in the business of the other. In Collector of Central Excise, Aurangabad v. Electro Services (P) Ltd. [2001 (127) E.L.T. 828 (Tri. - Del)], the CEGAT held that the assessee should not be treated as related person merely because partners of the assessee are not directors of the buyer Company. In Plus Cosmetics Pvt. Ltd. v. CCE, Kanpur [1999 (108) E.L.T. 71 (Tri.)], the CEGAT held that payment adjustments between buyer and seller is not sufficient for holding buyer to be favoured and incurring of all sales promotion and advertisement expenses by buyer also does not make him a related person. The learned Advocate contended that M/s. TASL and TAPL are separate legal entities and they cannot be considered as related persons. The Commissioner has taken into account, the following facts to arrive at the conclusion that M/s. TASL and M/s. TAPL are related. (1) Both units are family concerns of with Shri Anil Dev as common Director. (2) Shri Pasha, Ex-Director of M/s. TASL conceded that he was merely a dummy director and Shri Anil Dev managed every thing. (3) M/s. TAPL procured orders and directed the customers to place purchase orders on M/s. TASL for equipment and on M/s. TAPL f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the appellants and the M/s. TAPL. This is also very clear from the letter of the appellants addressed to Canara Bank. We are inclined to agree with the Commissioner that the appellant and M/s. TAPL are related. 9. The learned Advocate cited number of case laws to show that the goods which are not entered in RG I and not cleared from the factory are not liable for confiscation. Though according to the department, proper entry in the RG I register was not made, there is no charge that the appellants had removed the goods without payment of duty. Under these circumstances, the Commissioner's Order of confiscation of the goods is not sustainable in view of the settled case law on the subject. 10. As regards freight, the appellant is entitled to claim abatement of the actuals only. Claiming abatement in excess of the actual freight is not permissible. In view of the clear findings of the Commissioner on this aspect, the appellant is liable to pay the differential duty of Rs. 1,85,916/-. The Commissioner's order in this respect is confirmed. 11. As we have already confirmed the finding of the Commissioner that the appellant and M/s. TAPL are related, the price at which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central Excise, Bangalore Division. The main issue involved in the Dy. Commissioner's order is the inclusion of charges for ancillary works/erection, commissioning, etc., done by the assessee at their premises are includible in the assessable value. Citing various decisions the Commissioner (Appeals) has held that the erection charges are not includible in the assessable value. In view of our findings relating to Appeal No. E/106/2000 above, we hold that the OIA is legal and proper. Hence, the departmental appeal is rejected. Appeal No. 659/2002 14. This appeal has been filed against the Commissioner's OIO 6/02 dated 8-3-2002. In this case, the show cause notice has been issued on 4-6-2001, for payment of differential duty of Rs. 73,98,141/- on account of under-valuation for the periods from 1997-1998 and 1998-1999. The charges which are framed against the appellants are similar to the one which are dealt with in appeal No. E/106/2000. In the earlier appeal, the period involved was 1996-1997 & 1997-1998. Thus it is seen that the period in both the show cause notices overlapped. Apart from these facts, in the earlier case, show cause notice was issued, invoki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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