2005 (5) TMI 497

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....aration under Rule 173-C(1) of the Central Excise Rules, 1944, and without disclosing that M/s. Teksons Cooling Systems Pvt Ltd., Jamshedpur, is the subsidiary company of M/s. Tekson Ltd., Thane. The issue, therefore, arises for consideration is as to whether M/s. Tekson Ltd. is related person of M/s. Teksons Cooling Systems Pvt. Ltd. in terms of Section 4 (4)(c) of the Central Excise Act, 1944 and were required to pay Central Excise duty on value determined as per Section 4 (1)(b) of Central Excise Act, 1944 read with Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975. 2.For the purpose of reference Sections 4(1)(a), 4(1)(b), 4(4)(c) of Central Excise Act, 1944, and Rule 6(b)(ii) and Rule 6(c)(ii) of Central Excise Valuation Ru....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d in clause (b) of this rule." Section 4 of Company Act, 1956 defines holding and subsidiary company as under: - Meaning of "Holding Company" and "4. "Subsidiary Company"  (i) For the purpose of this Act, the company shall, subject to provisions of sub-section (3),(3), be deemed to be subsidiary of another if, but only if - (a) That other controls the composition of its board of director, or (b) That other - (i) where the first mentioned company is an existing company in respect of which the holders of preference shares issued before the commencement of this Act have the same voting rights in all respect a holder of equity share, exercise or controls more than half of the total voting power of such company, (i....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... that M/s. Teksons Cooling Systems Pvt. Ltd., Jamshedpur is a subsidiary company of M/s. Tekson Ltd., Thane and M/s. Tekson Ltd., Thane is holding company of M/s. Teksons Cooling Systems Pvt. Ltd., Jamshedpur during the relevant period that is during 1994-1995 - 1999-2000. The period in dispute involved in the present case is from February, 1996 to March, 2000. 4.In view of the aforesaid provisions, the Department has calculated the short payment of duty as given in Annexure 'A' to the show cause notice following the Board Circular No. 257/91/1996-CX., dated 30-10-1996. 5.The appellant has relied on the various decisions such as Atic Industries reported in 1984 (17) E.L.T. 323 (S.C.), Dawn Apparels Ltd. v. UOI - 1989 (43) E.L.T. 401 (....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....on who was in-charge or was responsible for the conduct of the business at the time when BHEL committed default in paying the duties as adjudicated upon by the earlier orders. Commissioner proceeded against the appellant under Rule 209A, which can apply only to a person who dealt with the contraband article, not as manufacturer. Appellant had no dealings with the contraband article otherwise than in his official capacity as an employee of BHEL, the manufacturer. So, by no stretch of imagination can the appellant fall within the purview of Rule 209A of the Central Excise Rules. Therefore, the Commissioner was clearly in error in thinking that penalty contemplated by Rule 209A could be imposed on the appellant who was only an employee of the ....