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2023 (3) TMI 1286 - AT - CustomsValuation for the purpose of CVD - Levy of differential Additional Duty of Customs - institutional buyer - should the additional duty of customs be assessed as per Section 4 or Section 4A of the Central Excise Act? - if assessment is done under Section 4A if Rs. 2,100/- can be taken as RSP? - demand of interest and imposition of penalty under Section 112 - Circular dated 11 March 2016 issued by the CBEC. HELD THAT:- It is an institutional consumer because it uses the STBs to provide service to the subscribers. Therefore, the bulk of STBs purchased by Dish TV cannot be considered as having a retail sale nor can the price of Rs.2,100/- be called Retail Sale Price. There can be retail price only if the STBs are sold to the ultimate consumer. In this case since the goods are not sold to the consumer there cannot be a retail sale price. The price at which goods are sold in wholesale or to an industrial or institutional consumer cannot be retail sale price as per the SWM Rules. Retail sale price is available only in those few cases where set top boxes have been damaged and subsequently sold to the subscriber. Undisputedly, the set top boxes were sold were much lower prices than Rs. 2,100/- in respect of such retail sales. The price at which the goods were sold to Dish TV cannot be considered as retail sale price. Dish TV cannot be considered as retail buyer because it is not using the goods for itself but is using them to provide service to its subscribers. Therefore, the price of Rs. 2,100/- at which the goods were sold to Dish TV cannot be considered as retail sale price even if the assessment is not modified and continues to be under Section 4A as was done in this case. The assessment should correctly be done under Section 4 as per Bharti Telemedia. Assessment in this case was done under Section 4A as per RSP with abatement as decided by the assessing officer of Rs. 1465/- - the assessing officer has rejected declared RSP of Rs. 1000/- per set top box and recalculated it after adding the basic customs duty to the landed cost of the STB and adding 20% as post importation cost which came to Rs. 1832/-. After allowing 20% abatement, he determined the additional duty of Customs on a value of Rs. 1465/-. How can the retail sale price be lower than the institutional sale price of Rs. 2,100/-? - HELD THAT:- There is no retail sales but only institutional sales in this case and, there are nothing in Rule 23(2) that permits sale price to institutional buyers to be reckoned as retail sale price. It is true that assessment (both self assessment and re-assessment) were done under Section 4A and the appellant had not assailed the assessment. However, by issuing the SCN Revenue has re-opened the assessment on one ground (that RSP should be taken as Rs.2,100/-) and it is open to the appellant to plead any grounds in defence including any question of law (that Section 4 and not Section 4A should have been applied) and it is for the adjudicating authority and appellate authorities to consider the defence. Appeal allowed.
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