TaxTMI 
TaxTMI 
2006 (7) TMI 498
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....the period from 1-4-2001 to 31-3-2003 and the OIA No. 117/2005 is for the period from 1-4-2003 to 30-9-2003. 2. The brief facts of the case are as follows :- The appellant, M/s. Vishwam Industries (Viswam for short), manufacture 'Canon' branded Kinetisers, a kitchen appliance similar to Hot Plate, on job work basis for M/s. Canan Technologies, Bangalore. The Central Excise officers conducted certain investigations. Based on the investigation, Show Cause Notices were issued to the appellants for confiscation of the seized goods and also for imposition of penalties under Rules 25 and 26 of the Central Excise Rules, 2002. Shri V.P. Viswanathan Nair is the Proprietor of the appellant unit M/s. Vishwam Industries. Smt. Betty Sebastian is the Proprietrix of M/s. Canan Technologies (CT in short). Shri V.D. Sebastian is the Chief Executive of M/s. Canan Technologies Pvt. Ltd. (CTPL in short). 2.1 The main charges against the appellants are as follows :- (i) Viswam manufactured and cleared excisable goods without obtaining Central Excise registration and without following the Central Excise procedures. Further the Canan branded Kinetisers ....
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....e 26 of Central Excise Rules, 2002 M/s. Canan Technologies 50,000/- -do M/s. Canan Technologies Pvt. Ltd. 50,000/- -do- Smt. Betty Sebastian Proprietrix M/s. Canan Technologies 25,000/- -do- Shri V.D. Sebastian Chief Executive M/s. Canan Technologies Pvt. Ltd. 2,50,000/- -do- (vii) Interest under Section 11AB was demanded. (viii) 1032 numbers of Canan Kinetisers seized at M/s. Viswam Industries, Bangalore and 234 numbers of Canan Kinetisers and 130 numbers of non-stick ware seized at M/s. Canan Technologies, Kerala, were held liable for confiscation. The RF imposed was Rs. 5,00,000/- and Rs. 70,000/- respectively. 3.  The appellants strongly challenge the findings of the Adjudicating Authority. 4.  Shri B.N. Gururaj, the learned Advocate, appeared for the appellants and Shri K. Sambi Reddy, the learned JDR for the Revenue. 5. The learned Advocate urged the following points :- (i) Based on the investigations, the DGCI Authorities seized 1032 numbers of finished Kinetisers on the ground that the appellant manufactured the goods without registration and cleared them wit....
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....as defined in Land Revenue records and excludes from the scope of 'rural area', areas which fall under municipal committee, municipal corporation, town area committee, cantonment board or notified area committee, or any area notified by the Central Government or the State Government as urban area. Before rejecting the certificate issued by the Deputy Tahsildar, the respondent ought to have examined whether Attibele fell within the scope of any of the excluded areas and not looked at how up to date the census data is. (vii) The rejection of certificate issued by the Deputy Tahsildar is for specious reasons. When the certificate was issued, 2001 census data was not available to anyone, either public or government. This data was released only in September 2004. No one could have issued the certificate based on non-existent information. The respondent expects the appellant and the Revenue authority to do the impossible, ignoring the maxim that law does not contemplate doing of the impossible (Lex non cogit ad impossiblia). Hence, the Deputy Tahsildar was justified in issuing certificate based on 1991 Census. Rejection of the certificate on the ground that it was based on 1991 ....
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.... appellant challenges the classification made by the lower authorities and contends that these items are to be classified under CSH 8543.00. (xiv) When the goods are removed in bulk, there is no need to declare the retail sale price on the package. When there is no declared price on the retail package, there can be no question of applying Section 4A. (xv) The Commissioner is bound to consider the applicability of CBEC Circular No. 625/16/2002-CX dated 28-2-2002 which allowed valuation of telephones removed in bulk packing under Section 4 and not under Section 4A, even though telephones were notified under Section 4A. The findings of the respondent do not even refer to the circular. Therefore, the impugned order is liable to be set aside for failure to follow the binding Circular of the Board. In this regard, reliance was placed on the ratio of Dhiren Chemicals v. CCE-2002 (139) E.L.T. 3 (S.C.). (xvi) The Commissioner has ignored the question of jurisdiction. The duty demand is of Rs. 66 lakhs. But, the Notice has been issued by the Joint Director of DGCEI, who is not competent to issue Show Cause Notice. There is no finding at all on this issue. The proceedings in pu....
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....3-C.E., as an industry situated in 'rural area'. 4. The learned JDR reiterated the findings of the Adjudicating Authority. 5. We have gone through the records of the case carefully. The main charge against the appellants is manufacture and clearance of goods without following the Central Excise procedures. (i) Classification of the impugned items is relevant to the present case. The appellants claim classification of their products under CH 85.43 of CET whereas the original authorities have held the same to be under CH 85.16. In the OIO/OIA, there is no detailed discussion regarding the classification. In the present case, valuation under Section 4A of the Central Excise Act depends upon the classification of the impugned item. The determination of classification in the impugned orders is not satisfactory. Moreover, in deciding that impugned goods are to be valued on the basis of MRP, the original authorities have not considered the applicability of CBEC Circular 625/16/2002-CX dated 28-2-2002 which provides for valuation of goods removed in bulk packing under Section 4 and not under Section 4A. (ii) The appellan....