HYDRAULICS PVT. LTD. Vs. CCE

JUDGEMENT

(1.) FOR the purpose of hearing this appeal, the applicants/appellants are required to pre -deposit balance duty of Rs. 58,20,315 out of the total duty Rs. 70,42,344 as a sum of Rs. 12,22,029 already paid by the appellants have been adjusted against the total demand as noted in the order impugned, besides mandatory penalty equal to the amount of total duty demanded.

(2.) PROCEEDINGS were initiated against the appellants by issue of show cause notice dated 27.7.2001 on various allegations such as

(3.) SHRI K. Mani, learned Consultant for the appellant submitted that the issue relates as to what should be the assessable value in respect of components received from job -worker under Rule 57F (4) procedure on which the appellants have not done any operations and they have simply transferred the same to their sister concern at Pondy and Gurgaon and also sold to subsidiary Company. He has submitted that the amount involved on job -worked components is over Rs. 65.00 lakhs while towards diversion of capital goods the amount is worked out at Rs. 9.94 lakhs. He has further submitted that the very same issue i.e. valuation has been adjudicated vide Order in Original No. 24/98 dated 26.6.78 for a period from 10/97 to 3/98 wherein the Assistant Commissioner has dropped the demand. He has further submitted that for the very same issue for a subsequent period 1995 to 1988 (sic, 1998) demanding duty of Rs. 3,31,115 the matter is pending before the Joint Commissioner of Central Excise, and, therefore, the present demand is without jurisdiction. In support of his plea he has invited our attention to the decision of the West Zonal Bench in the case of Ownes Brockway (I) Ltd. v. CCE, Pune, 2000 (121) ELT 710. As regards the demand for extended period, he submitted that the appellants have not suppressed any facts from the department as the departments full aware of the activities being carried on by the appellants, as the CRA visited the unit in December 1988 and reported in their audit reported. He has also invited our attention to the order of the Tribunal in the case of Tata Metal and Strips Ltd. v. CCE, Vadodara, 1998 (100) ELT 316 wherein it was held that incorrect calculation of duty does not constitute suppression or wilful mis -statement or fraud on the part of the assessee. He has also submitted that the demand of Rs. 4,21,584 is barred by limitation, though he has not submitted any working out statement in this regard. He has also invited our attention to the order of the Tribunal in the case of Smithkline Beecham Consumer Health Care Ltd. v. CCE, Chandigarh regarding availability of credit. He, therefore, prayed for allowing the stay petition.