Jyoti Balasundaram, Member (J)

1. Both appeals involve common issues and are hence heard together and being disposed of by a common order.

2. The charge against the appellants is that M/s. Brady Morris Engineering Co. (hereinafter referred to as the subsidiary Co.) had manufactured and removed excisable goods i.e. pulley blocks, electric hoists and travelling trolleys falling under T.I. 68 valued at Rs. 1,69,429/- from their factory premises by truck No. BMS 2251 belonging to W.H. Brady Co. Ltd. (hereinafter referred to as the holding Co.) on 12th and 13th October 1981 without determination and payment of Central Excise duty, without the cover or valid CE transport documents in form G.P. 1 and without accountal in the R.G. 1 Register. After issue of show cause notices for levy of duty on spare parts supplied, on repair charges and erection and assembling charges, seizure of confiscated goods, imposition of penalty and confiscation of the truck, the Collector of Central Excise, Bombay passed the impugned order dated 21-7-1984,

(a) levying duty of Rs. 59,262.11 by inclusion of value of spare parts and erection charges in the assessable value

(b) releasing seized goods on payment of redemption fine of Rs. 40,000/-

(c) imposing a penalty of Rs. 25,000/- on the subsidiary Company

(d) releasing the truck owned by the holding company on payment of redemption fine of Rs. 10,000/-

Against this order the above appeals have been referred.

3. We have heard Shri P.G. Gokhale and Shri R.C. Pande, learned advocates for the appellants and Shri K.D. Tayal, learned SDR for the Department.

4. It is seen that in the adjudication proceedings before the Collector the Company expressed its willingness to discharge duty liability in respect of replacement of parts supplied under a 1 year guarantee. In view of their submission, they cannot now contend that the value of parts is not includible in the assessable value, and we see no reason to interfere with the Collector's Order on this aspect.

5. Regarding the inclusion of erection/assembling charges, charged by the appellants on goods supplied in knock down condition, the Collector has held as follows :-

"M/s. W.H. Brady and Co. Ltd. being the sole selling agent and related to the company, the company should have filed the price list by including the cost of erection, assembling and labour charges on the said goods. The Company has argued that the goods manufactured by them were cleared on payment of duty and sold to M/s. W.H. Brady and Co. Ltd. They never dealt with the said goods after their sale to M/s. W.H. Brady and Co. It is further contended that they have never appointed M/s. W.H. Brady and Co. as their sole selling agent and they had not sold the goods to M/s. W.H. Brady and Co. on turnkey project basis. They argued that their transaction with M/s. W.H. Brady and Co. Ltd., was at arms length. Examining this contention, I find that M/s. W.H. Brady and Co. Ltd. are the holding Company of M/s. Brady and Morris Engineering Company. Therefore, M/s. W.H. Brady and Co. Ltd., are related person of M/s. Brady and Morris Engineering Co. Ltd., I also find that M/s. Brady and Morris Engineering Co. Ltd. under their letter No. ADM/3168/80 dated 3-12-1980 informed the Range Superintendent that they had worked out the differential amount of excise duty on the invoice value of M/s. W.H. Brady and Company Ltd., being their holding Company for the period from.-10-1975 to 30-9-1976 and paid the amount under protest. The company by their letter No. C. Ex. SRS/60/82 dated 30-12-1982 informed the Range Superintendent about the payment of differential duty for the period from 1-4-1982 to 30-4-1982.

It is also seen that under their letter No. C. Ex./SRS/22/83 dated 17-8-1983, company informed the Range Superintendent that in view of the judgment of the Hon. Supreme Court published in Times of India dated 9-5-1983 wherein related person was interpreted they have stopped putting the remark 'under protest'. The above cor