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2015 (9) TMI 517 - AT - Central ExciseDuty demand - Valuation - Whether warranty charges can be allowed to be deducted from the MRP for the purpose of valuation under Section 4A - Held that:- From the reading of section 4A in subsection (2) it is very clear that while arriving at the assessable value for the retail sale price an amount of abatement is specified by notification can only be deducted. In the present case, on CTVs the abatement during the relevant period was provided within the range of 30% to 35% in terms of Notification 2/2006-CE (NT) dated 1/3/2006 as amended from time to time. From the subsection (2) is can be seen that except notified abatement no other deduction such as warranty or any other charges are allowed to be deducted. It is also seen from explanation 1 under subsection (4) of section 4A that as per the definition of retail sale price, the price at which the goods is sold in packaged form to the ultimate consumer which includes, local or other taxes, freight, transportation charges, commission payable to dealer and all charges towards advertisement, delivery, packaging, forwarding and the like. Price which affixed on the package of CTVs is undisputedly maximum retail sale price and no deduction can be allowed from the said retail sale price other than the abatement as statutorily provided under the notification. In the instant case, the fact is that the RSP was declared by the appellant including the warranty charges and the same was affixed on the package. Thus as per the appellant's declaration itself the retail sale price includes the warranty charges. It that is so the abatement ranging from 30% to 35% as notified by the government shall only be allowed and in term of subsection (2) of section 4A no any other deduction is permissible to arrive at the assessable value. Therefore there is no provision under the law to exclude warranty charges from the retail sale price while computing the assessable value. Statutory provision under Section 4A cannot be altered or influenced merely because the appellant has chosen to discharge service tax on portion of the retail sale price. Therefore merely because the service tax was paid, deduction of the said value cannot be allowed as no such option has been provided either under the Central Excise Act, or under the Finance Act, 1994. Appellant during to a particular period were including warranty charges in the RSP and discharging the excise duty accordingly, but on their own they changed the system and started deducting warranty charges from the RSP, however this was done knowingly by the appellant which was neither declared to the department nor any opinion was sought for from the department, this act of the appellant is clearly amounts to suppression of fact. Excise duty has been calculated on full MRP minus abatement, whereas excise duty at the time of clearance has been paid after deduction of 150/- from the MRP. This shows that the appellant was in full knowledge that the excise duty was required to be paid on full MRP minus abatement but they paid less duty intentionally therefore this is clear case of suppression of fact and the appellant's submission that the demand being time bar is not tenable. - Decided against assessee.
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