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2014 (12) TMI 233 - CESTAT MUMBAIWaiver of pre deposit - MRP based valuation of goods u/s 4A - Inclusion of warranty charges - Invocation of extended period of limitation - Held that:- Merely because the inclusive part of the definition describes certain elements to be included in the retail price, it does not mean that whatever is not specifically stated therein cannot be included in the retail sale price. As per the main definition, retail sale price means maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer. If that price includes warranty charges, obviously the same cannot be excluded from the retail sale price. In the instant case it is an undisputed fact that retail sale price, which was declared by the appellant/assessee included the warranty charges. Thus, as per the appellant’s declaration, the retail sale price included warranty charges. As per the provisions of sub-section (2) of Section 4A, what can be deducted is the abatement of 30% to 35% notified by Central Government. This means that from the total retail sale price only the abatement of 30% to 35% can be deducted to arrive at the assessable value. There is no provision whatsoever under the law to exclude warranty charges from the retail sale price while computing the assessable value. The ld. Advocate has contended that since they are paying service tax on the warranty charges they should be permitted to exclude the same from the assessable value. This contention is again totally irrelevant. Appellant did not inform the department about the exclusion of warranty charges from the retail sale price nor did they declare the same in ER-1 return filed with the department. In fact the appellants were earlier paying duty on the value inclusive of warranty charges and in the ER-1 return what is reflected is only the assessable value and not the MRP/RSP. In view of the above, we are prima facie of the view that the appellant has suppressed the fact of excluding the warranty charges from the MRP to arrive at the assessable value and, therefore, the extended period of time has been rightly invoked. We also notice that the case laws relied upon by the department, namely, Gujarat Goldcoin Ceramics Ltd. [2007 (7) TMI 23 - CESTAT, AHMEDABAD] and Sony India Ltd. [2000 (6) TMI 236 - CEGAT, NEW DELHI], supports the department’s case - prima facie of the view that the appellant has not made out any case for complete waiver of pre-deposit of the dues adjudged. - Partial stay granted.
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