COMMISSIONER OF CENTRAL EXCISE, DELHI versus M/S. ACTION CONSTRUCTION EQUIPMENT (P) LTD.

Citation: [2006] SUPP. 3 S.C.R. 672 · Decided: 19-07-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
COMMISSIONER OF CENTRAL EXCISE, DELHI 
v. 
MIS. ACTION CONSTRUCTION EQUIPMENT (P) LTD. 
JULY 19,2006 
[ARIJJT PASA YAT AND S.H. KAPADIA, JJ.] 
Central Excise Act, 1944-Section 4(4)(d)-Assessab/e value of mobile 
cranes-Issue regarding-Question not reflected in appeal memos filed by 
C Department before the Tribunal and in the present appeal raised for the first 
time when the matter came up for admission before Supreme Court-Supreme 
Court declines to examine the question-Constitution of India, 1950-Article 
136-New plea. 
The present appeals concerns compt1tation of assessable value of mobile 
D cranes under Section 4(4)(d) of the Central Excise Act, 1944 as it stood at 
the relevant time, prior to the year 2000. 
Holding that the assessee-Respondent had deliberately floated a non-
functional dummy unit to evade excise duty on the mobile cranes being 
manufactured by it, the Adjudicating Authority fixed the assessable value at 
E Rs.26,63,400/- involving a corresponding l!xcise duty liability ofRs.4,10,144/ 
-. The Appellate Authority, however, following a judgment of this Court in 
Maruti Udyog Limited held that the price charged by the assessee should be 
treated as cum-duty price, and accordingly reduced the assessable value to 
Rs.22,09,827 /-. Correspondingly the liability of the assessee with regard to 
F excise duty stood reduced to Rs.3,53,573/-. Consequently the assessee sought 
refund. 
Against the order of the Appellate authority, the Department went in 
appeal before the Tribunal only on the ground that the decision in Maruti 
Udyog Ltd was pending reconsideration by Supreme Court vide a Review 
G Petition and, therefore, the appellate authority should not have followed that 
judgment. But the appeal was dismissed. Hence the present appeal. 
The said Review Petition has since been dismissed. When the matter 
came for admission, it was urged on behalf of the Department that the 
judgment in Maruti Udyog Ltd. was not applicable to the facts of the present 
II 
672 
COMMR. OF CENTRAL EXCISE, DELHI "· ACTION CONSTRUCTION EQUIPMENT (P) LTD. 
673 
case. 
Declining to examine the question and thereafter dismissing the appeals, 
the Court 
A 
HELD: Jn the circumstances of the case, this Court does not wish to go 
into the factual issue particularly, when no such plea was taken by the B 
Department in the appeal before the Tribunal and before this Court in the 
present appeal. The only ground taken in both the appeals was that the 
judgment of this Court in Maruti Udyog Ltd. was pending re-consideration 
vide a Review Petition. The question as to non-applicability of the judgment of 
this Court in Maruti Udyog Ltd. to the present case is not reflected in the C 
appeal memos before the Tribunal and in the present appeal and, therefore, 
this Court refrains from examining the factual conspectus of the case. 
(678-C-F) 
Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd., (2002) 144 
EL T 3, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6394 of2004. 
From the Final Order No. 611/04-NB(A) dated 16.6.2004 of the Customs, 
Excise & Service Tax Appellate Tribunal, New Delhi in Appeal No. E/3857/03-
D 
NB(A). 
E 
WITH 
Civil Appeal Nos. 2380/2005,2967-2969/2005, 2970/2005, 3481/2004, 3724/ 
2005, 385/2004, 4909/2004, 6348-6350/2004, 6523/2004 and 7662/2004. 
A.K. Ganguli, T.V. Ratnam, K. Swami, B.K. Prasad and P. Parmeswaran 
for the Appellant. 
Joseph Vellapally, Piyush Kumar, Anitha Shenoy, Ajay K. Jain Seema 
Jain, M.P. Vinod, V. Lakshmikumaran, Alok Yadav and Rajesh Kumar for the 
Respondent. 
C.D. Singh, Dhrupad Kashyap and Minakshi Sarma for the State of 
Jharkhand. 
The Judgment of the Court was delivered by 
F 
G 
H 
674 
SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R. 
A 
KAPADIA, J. CIVIL APPEAL NO. 6394 OF 2004: 
B 
This civil appeal is filed under Section 35L(b) of Central Excise Act, 1944 
against the order dated 16.6.2004 passed by the Customs, Excise & Service 
Tax Appellate Tribunal (for short "the CESTAT"), New Delhi in Appeal No. 
E/3857/03-NB(A) dismissing the appeal filed by the appellant herein. 
The question involved in this civil appeal concerns computation of 
assessable value of mobile cranes under Section 4(4)(d) of the Central Excise 
Act, 1944 (for short "the 1944 Act") as it stood at the relevant time, prior to 
the year 2000. 
C 
The facts arising in this appeal are as follows: 
The assessee (respondent) floated a non-functional dummy unit in the 
name of ACE Industr
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