TMI Blog2011 (2) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... ommodity. The imported packages had come with the mark "imported and marketed by M/s. NITCO Tiles Ltd.". It appears, the words "imported and marketed" were misunderstood by the appellate authority as "imported and marked". This misunderstanding lead the appellate authority to the erroneous notion that the importer had to be treated as 'manufacturer' in India on account of having "marked" the packages. This mistake bred other mistakes also, like pressing into service Rule 2(h) - as the burden of the respondent to establish before the adjudicating authority that the provisions of Chapter II of the SWM (PC) Rules are not applicable to the packaged commodity imported by them the respondent should get a reasonable opportunity of adducing evidence and of being heard so that the original authority can take a decision afresh. - C/1153/2008 - - - Dated:- 9-2-2011 - P.G. Chacko, Shri Sahab Singh, JJ. Appearance: Shri K.M. Mondal, Special Consultant for the appellant Shri T.Viswanathan, Advocate for the respondent Per: P.G. Chacko: In this appeal filed by the Revenue the short question arising for consideration is whether the goods (polished, vitrified porcelain ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent was required to declare MRP on the goods under the provisions of The Standards of Weights and Measures Act and the Rules framed thereunder. The assessing authority held that the tiles were meant for sale in the retail market and, therefore, the respondent was required to mention its retail sale price (RSP) on the packages. It was held that the importer was basically a trader / wholesale-dealer selling the tiles by way of trading. The Assistant Commissioner referred to the relevant factors for MRP-based assessment as laid down by the apex court in the case of Jayanti Food Processing (P) Ltd. and observed that the nature of sale was not relevant to such assessment. It was found that the goods imported by the respondent were not exempted by Rule 34 of the SWM (PC) Rules and hence the assessment was required to be made under Section 4A. On this basis, the assessing authority ordered for MRP-based assessment of the goods to CVD under Section 4A of the Central Excise Act. 2. In an appeal filed by the assessee against the above decision of the Assistant Commissioner, the learned Commissioner (Appeals) recorded contra findings. He held thus: "It is not disputed that the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tiles for construction purpose and not to sell in the market. It was held that, therefore, the tiles imported by the respondent and meant for sale to industrial / institutional consumers could not be treated as a retail package inasmuch as the sale/distribution was not through any retail sale agency or other instrumentality but directly by the importer. The learned consultant for the appellant has submitted that the burden is on the respondent to show that the tiles covered by the Bill of Entry were actually sold to institutional/industrial consumers before claiming any benefit of exemption from declaring MRP on the goods. The learned consultant has made this submission without prejudice to his argument that the respondent was statutorily required to affix MRP on the imported packages even if sold to industrial / institutional consumers. In this connection, he has relied on the Hon'ble Supreme Court's judgment in the case of Jayanti Food Processing (P) Ltd. vs. Commissioner of Central Excise (supra). His focus is on paragraphs 31 to 33 of the apex court's judgment wherein it was held that the telephone instruments supplied by assessees to Department of Telecom, MTNL and BSNL a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g construction industry and, accordingly, excluded under Rule 34 from the requirement of displaying MRP on the packages. Construction was held to be an industry, and, on this basis, the sale of cement by the assessee to builders was held to be not a retail sale. It is submitted that the view taken by the Tribunal in Grasim Industries case stands impliedly upheld in the case of Commissioner of Central Excise, Bangalore - II vs. Mysore Cements Ltd. 2010 (259) ELT 30 (Kar.). In the case of Mysore Cements Ltd., the assessee had cleared cement in packaged form to the construction industry from January to March, 2008. The Hon'ble High Court upheld the Tribunal's view that construction industry was a service industry and accordingly it was held that the provisions of Chapter II of the SWM (PC) Rules were not applicable to the packaged commodity (cement) sold to the construction industry. The learned counsel has claimed support from the apex court's judgment in Jayanti Food Processing (P) Ltd. case and the High Court's judgment in Mysore Cements Ltd. case to his argument that the packaged tiles supplied by the respondent to industrial/institutional consumers in 2008 were not liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment of the goods to CVD on the basis of MRP. We also note that the withdrawal of provisional assessment was not challenged before the Commissioner (Appeals). In other words, the respondent submitted themselves to final assessment in the first instance. In this scenario, the burden is on them to establish that the commodity imported by them were not sold in retail market. This burden has to be discharged before the original authority, if necessary by relying on the relevant provisions of law, relevant circulars of CBEC and relevant case law. 7. Thirdly, we have found that the learned Commissioner (Appeals) misunderstood certain marks found on the packaged commodity. The imported packages had come with the mark "imported and marketed by M/s. NITCO Tiles Ltd.". It appears, the words "imported and marketed" were misunderstood by the appellate authority as "imported and marked". This misunderstanding lead the appellate authority to the erroneous notion that the importer had to be treated as 'manufacturer' in India on account of having "marked" the packages. This mistake bred other mistakes also, like pressing into service Rule 2(h) (definition of 'manufacturer') and claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X
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