TMI Blog2019 (12) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act - The Commissioner found that the Department could not substantiate that the goods in question were sold to ultimate consumers at a price that was higher than the printed MRP. While arriving at this finding, the Commissioner observed that none of the three grounds contemplated under section 4A of the Excise Act on account of which the Department could ascertain the retail price existed. In fact the Commissioner also examined two invoices which clearly indicated that the boxes were sold at ₹ 1,499/- by M/s TATA SKY Ltd. No evidence was produced by the Department to establish that the Boxes were sold to ultimate customers at a price higher than the MRP. When the conditions set out in sub-section (4) of section 4A of the Act for ascertaining the retail sale price of the goods were not satisfied, the Department cannot be permitted to ascertain the sale price of the goods. The MRP indicated in the Boxes would alone form the basis for determining the levy of Central Excise duty. Appeal dismissed - decided against appellant. - Excise Appeal No.2828 of 2010 - FINAL ORDER NO.71793/2019 - Dated:- 24-9-2019 - HON BLE MR. JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther details were sought by the Department by letter dated 05 January, 2009 regarding the costing of the boxes and change, if any, in the cost of the Boxes. Details were provided by the Respondent on 06 January, 2009. 4. However, a show cause notice dated 03 February, 2009 was issued by the Department to the Respondent proposing to demand Central Excise duty amounting to ₹ 20,15,70,036/- with interest and an equal amount of penalty as duty was short paid since the printed MRP did not reflect the true MRP in accordance with the costing records and the same could not be accepted for the discharge of duty under section 4A of the Excise Act. The MRP of ₹ 2,999/- printed on the boxes prior to 24 January, 2008 was, therefore, proposed to be taken as the correct price. 5. The Respondent filed a reply dated 21 May, 2009 to the aforesaid show cause notice. It pointed out that the Boxes were notified under section 4A of the Excise Act with effect from 25 January, 2008 and, therefore, the assessment of the Boxes for arriving at the excisable value has to be determined only on the basis of the MRP mentioned in the Boxes. It was also pointed out that goods were not sold below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration is written in Hindi language. It is further observed that M/s B.R. Electronic purchased the sets from M/s Sreejee Infocom (P) Ltd. R.D.C. Ghaziabad vide Bill No.199 dated 19.11.2008 at price of ₹ 1132.44 per set. The website of Tata Sky also displayed the price of Digicomp at ₹ 1,499/- apart from Standard Installation, Warranty, Activation charges including 15 meter cable length extra at ₹ 1,000/- and the monthly subscription fee starting from ₹ 125/- per month on which Service Tax was paid as submitted. Therefore, the contention of the party has force that this is not a case where MRP has to be re-computed. From the copy of invoice of M/s B.R. Electronic, Ghaziabad mentioned above, Website of M/s Tata Sky it is noticed that the set top box is question was being sold at ₹ 1,499/-. No evidence is adduced in the show cause notice to establish that the set top box (model T-32) is sold to ultimate customer at price higher than RSP. Only on the basis of costing the department cannot suo moto re-compute the RSP unless the condition as envisaged under Rule 4 of Central Excise (Determination of Retail Sale Price of Excisable goods) Rules, 2008 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. We have carefully considered the submissions advanced by the learned Authorized Representative of the Department and learned counsel appearing for the respondent. 10. In order to appreciate the contentions advanced on behalf of the parties, it would be appropriate we reproduce the relevant portion of section 4A of the Excise Act and it is as follows:- SECTION 4A. Valuation of excisable goods with reference to retail sale price. (1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply. (2) Where the goods-specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated the 1st March,2006, vide number G.S.R. 113 (E), published in the Gazette of India. Extra ordinary, part II, Section 3, sub-section (i) dated the 1st March, 2006, namely:- In the said notification, in the Table, (i) ------- (ii) ------- (iii) ------- (iv) after S. No. 89 and the entries relating thereto, the following shall be inserted, namely:- SI. No. Chapter, heading, sub-heading or tariff item of the First Schedule Description of goods Abatement as a percentage of retail sale price (1) (2) (3) (4) 89B 8528 71 00 Set top boxes for television sets 24% 2. This notification shall come into force on the 25th day of January, 2008. 13. It is not in dispute that the Respondent was paying Central Excise duty on the various models of Boxes manufactured and cleared on the basis of MRP printed on the boxes in terms of section 4A of the Excise Act after availing abatement as applicable from time to time with effect from 25 January, 2008. Prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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