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2019 (5) TMI 870 - AT - Central ExciseMethod of Valuation - goods being accessories of two wheelers - components & parts OR accessories - appellant after manufacturing of such goods are clearing to the above buyers without affixing any MRP and assessing the same in terms of Section 4 of Central Excise Act - section 4 or 4A of CEA? - N/N. 49/2008- CE (NT) - Clandestine removal - applicability of legal Metrology Act, 2009 - HELD THAT:- The fact remains that these goods when bought by the individual customers were at their own option and the Two Wheeler manufacturers were not mandatorily required to fix these goods on the two wheelers at the time of sale of two wheelers to their customers. The Revenue has not brought any evidence on record to show that the Two Wheelers may not run without the impugned goods or it is mandatory to fix these goods at the time of clearance of the two wheelers from the two wheeler manufacturers’ factories. The impugned goods are attached to the two wheelers for the convenience and safety of the vehicle as well as of the rider. There is clear difference between the parts and accessories and they cannot be equated with each other. Section 4A of the Central Excise Act, 1944 covers only those excisable goods which are required to declare the retail sale price under the provisions of legal Metrology Act, 2009. Even if the goods are presumed to be listed under Notification 49/2008, the same would not be covered under the provisions of Section 4A of the Central Excise Act, if these are not covered by the provisions of the legal Metrology Act, 2009 and the Rules framed therein. As per explanation of above Notification 49/2008-CE (NT), retail sales price means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight charges, commission payable to dealers and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be, and sale price is the sole consideration for such sale. Thus it can be seen that the retail sale price is defined with reference to sale to the ultimate consumer only whereas the industry or institutional consumers are not ultimate consumers - There is no dispute about the fact that the Appellants are selling the goods in bulk pack, wherein per box includes 5 / 6/ 10 pieces per box. It is, thus, absolutely clear that the goods when cleared by the Appellant are not intended for retail sale at the end of M/s RC. The impugned goods are not components, parts or assemblies of the Two Wheeler but are accessories of two wheelers and hence not liable for valuation in terms of Section 4A and Notification No. 49/2008 – CE (NT). Further that the goods were at the time of clearance from the factory of M/s RC were not intended to be sold to the ultimate consumer in retail but were intended to be cleared in wholesale package to the industrial customer and hence not liable to duty in terms of Section 4A and Notification No. 49/2008 – CE (NT) - the demand made against M/s RC in terms of Section 4A and in terms of Notification No. 49/2008 – CE (NT) is not sustainable.. Confiscation of goods - no evidence that the goods were diverted elsewhere - HELD THAT:- The charges of clandestine removal has to be investigated and proved and cannot be merely alleged on the basis of incomplete challans or records. No buyer of such goods which were inputs or semi finished goods has been found. No statement of any job worker is appearing on record and no evidence except job work challans are appearing on record. In absence of any buyer and receipt of any consideration it cannot be said that any goods were removed by RC. No discrepancy in stocks has been shown to have occurred. The allegation lacks any corroborative evidence and hence the demands are not sustainable. The show cause notice has not adduced single evidence that the goods were diverted elsewhere. The Appellant has removed all the finished goods on invoices and there is no evidence to suggest removal of inputs or semi finished goods without legitimate invoices. There is no mention in the show cause notice or the impugned order to show that if the semi finished goods after job work were not received back in the factory then where else the same were cleared. The goods were being cleared without complying with the provisions of Section 4A, we hold that since the valuation of goods in terms of section 4 i.e. assessment of duty on transactional value under section 4 is correct, therefore the confiscation of goods is not sustainable. Appeal allowed - decided in favor of appellant.
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