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2014 (3) TMI 164 - AT - Central ExciseUndervaluation - MRP based valuation u/s 4A - change in MRP subsequent to removal of goods - non declaration of the actual MRP on ceramic glazed tiles and vitrified tiles - two periods i.e. prior to 01.03.2008 and post 01.03.2008. - demand of differential duty and levy of penalty - Held that:- 3 decisions of the Tribunal i.e. M/s Millennium Appliances India Ltd [2009 (3) TMI 855 - CESTAT, BANGALORE], M/s Ravi Foods Pvt. Ltd. [2010 (12) TMI 290 - CESTAT, BANGALORE], M/s ABB Ltd [2010 (12) TMI 1027 - CESTAT, BANGALORE] have held a view that prior to 01.03.2008, in the absence of any provisions for re-determining the RSP, in the form of prescribed rules, the Revenue authorities cannot re-determine the RSP under any of the provisions available to them. It has to be noted that there is no contrary view which has been taken by the Tribunal. The ratio laid down by Apex Court in the case of M/s Mahim Patram Pvt. Ltd. [2007 (2) TMI 73 - SUPREME COURT OF INDIA] does not in any manner support the case of the Revenue. There being no contrary judgment to the views expressed by the 3 decisions of the co-ordinate benches of the Tribunal on this issue, even assuming that there was mis-declaration of RSP, period prior to 01.03.2008 the RSP cannot be re-determined by the Revenue in any manner. Yet another angle to the entire case is absence of evidence as to there being alteration of RSP; in as much as when the investigations were conducted by the authorities, we find that the investigating authorities have not seized a single carton of the offending goods in the Pan India operation at different dealers premises, wherein different RSP was declared. It would be beyond imagination that the dealers could not have had any stocks of glazed/vitrified tiles received from the appellants, in their hands when the investigation took place. In the absence of such a crucial evidence, we are unable to hold that the appellant herein can be saddled with a liability of Central Excise duty based upon re-determined RSP, for the period prior to 01.03.2008. Further, the manufacturers may be unaware that the RSP on the box was obliterated or altered after the removal from their place of manufacturer, as none of the dealers have stated that the RSPs were changed on direction of manufacturer; or manufacturer was instrumental to order such a charge. Demand set aside - Decided in favor of assessee.
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