2008 (2) TMI 690

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....llants are required to pre-deposit the following amounts as indicated below :- (i)      M/s. Vishwam Industries. Bangalore - Duty of Rs. 31,70,397/- (ii)    Penalty of Rs. 31,70,397/- on M/s. Vishwam Industries under Section 11 AC (iii)   Interest on the duty (iv)   M/s. Canan Technologies, Ernakulam - Penalty of Rs. 50,000/- under Rule 26. (v)     M/s. Canan Technologies (P) Ltd. - Penalty of Rs. 50,000/- under Rule 26 (vi)   Shri V.D. Sebastian, Chief Executive of M/s. Canon Technologies (P) Ltd. - Penalty of Rs. 1,00,000/- under Rule 26. 3. Shri B.N. Gururaj, the learned Advocate, appeared on behalf of the appellants and Sh....

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....o of the CBEC Circular dated 28-2-2007 has wrongly been applied. Further, he stated that the impugned goods are removed from the premises of the appellant in bulk pack of 8 Nos. per box without marking MRP. He urged the point that in terms of the settled law, goods should be assessed in the condition in which they are removed and this point has been ignored by the learned adjudicating authority. Further, he stated that the conduct of the other appellants not contumacious or in defiance of law. All the parties have acted based on legal advice that these goods could be manufactured on job work basis by applying Ujagar Prints [1988 (38) E.L.T. 535 (S.C.)] ratio for valuation. 5. On the other hand, the learned Departmental Representativ....

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....nder Section 4. The Jayanti Food Processing case decided by the Apex Court has been referred to by both the parties. After going through the impugned order, we find that prima facie, the appellants do not have a strong case. In the Jayanti Food Processing case, the Hon'ble Apex Court has observed as follows. We reproduce para 6 : "6. Shri Subba Rao, learned Advocate urged that where the goods are sold in bulk, Section 4A would not apply and the assessment would have to be done under Section 4 of the Act. We have already clarified above that it is not the nature of sale which is relevant factor for application of Section 4A but the applicability would depend upon five factors, which we have enumerated in para 2 above." Further in ....