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2018 (12) TMI 390 - AT - CustomsShort payment of CVD on imported goods - it was alleged that subsequent to the import of the goods, the appellant has been affixing a higher RSP on the products, as per the Price List available with the appellant - disputed period April, 2005 to November, 2005 - this matter is now placed before for setting aside difference of opinion - the Learned Member (Judicial) has held that the impugned order is liable to be set aside and the appeals be allowed, whereas the Learned Member (Technical) has held that the duty demands, interest and penalties have to be confirmed and only the redemption fine needs to be revisited, for which purpose, he proposed to remand the matter. Held that:- The requirement of payment of CVD on the basis of MRP would arise, if the two conditions are satisfied, viz, (i) There shall be a requirement under Standards of Weights and Measures Act / Rules (later renamed as Legal Metrology Act) to declare RSP (Retail Sale Price) on such goods; and (ii) Such goods must be included under Third schedule to the Central Excise Act and attract duty of excise under Section 4 A of the CE Act. It may be noted that while the "requirement" to affix MRP is cast under SWM Act / Rules, what is relevant for the purposes of assessment of Customs duties is the MRP “declared” on such goods - There is no scope to go beyond the MRP declared. Hence, the observations made by Member Technical that the issue is one of misdeclaration and not mere change of MRP cannot be countenanced. It is apt to refer to the finding of the Member Judicial, in para 9 of the order, which is apposite. It is also fact, as rightly noted by the Member Judicial that the duty demand is based only on price lists and depositions, but there was no evidence that any higher MRP was affixed on the goods. Lack of any machinery provision in the Statute, to demand any differential duty if the MRP declared at the time of import was later changed or the goods are sold at higher prices - Held that:- The Member Judicial has relied on a slew of decisions, wherein it has been consistently held that no demand of differential duty could be made in such cases, till 01.03.2008. A decision arrived at, after referring to several decisions on the same issue, could not be faulted - Further, the Member Technical has not recorded any contra view on this aspect. Hence, it cannot be said that there is any difference of opinion between the two members on this issue, i.e. as to whether duty demand could be made on the basis of higher MRP at which the goods were subsequently stated to be sold, in the absence of any machinery provision to do so, till the introduction of Central Excise (Determination of Retail Sale Price of excisable goods) Rules, 2008. Even if a higher MRP was affixed on the goods after their import, whether such activity would amount to manufacture? - Held that:- Once the activity amounts to manufacture, it is only excise duty that can be demanded. In this connection, the Member Technical has observed that it is a separate issue and CVD is also payable as per the revised MRP. The decision of the Member Judicial, setting aside the duty demands, confiscation and penalties is correct in law and decision of the Member Technical to confirm the duty demand, confiscation (with reduction of redemption fine) and penalties cannot be subscribed to - the decision of the Member Judicial concurred with and the file returned to the Division bench to pronounce the majority decision.
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