9911796707
TMI Blog2011 (2) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/06/2008 addressed to the Dy. Commissioner of Customs (Gr. III) of the Custom House, the respondent stated that MRP-based assessment was not required for the goods and also that the payment of duty assessed on the basis of MRP was to be treated as payment under protest. Further, in a letter dated 06/06/2008 addressed to the Assistant Commissioner of Customs (Gr. III), the respondent submitted that the goods were meant for supply to industrial and institutional consumers and that the provisions of Chapter II of The Standards of Weights and Measures (Packaged Commodities) Rules, 1977 [SWM (PC) Rules] were not applicable to the packaged commodity imported by them for sale to industrial and institutional consumers. In this letter, the respondent also relied on CBEC circular No. 625/16/2002-CX dated 28/02/2002 and the Supreme Court's judgment in Jayanti Food Processing (P) Ltd. vs. Commissioner of Central Excise, Rajasthan 2007 (215) ELT 327 (SC). They submitted that The Standards of Weights and Measures Act or the Rules framed thereunder did not require them to affix MRP on the subject goods and hence the question of paying CVD with reference to MRP did not arise.&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to Section 3(2) cannot be applied for determining the value of the imported goods for the purposes of CVD." The appellate authority relied on the definition of "manufacturer" given under Rule 2(h) of the SWM (PC) Rules and held that the definition was very wide and was not restricted to actual manufacturer. After stating that the importer had put certain marks on the packages, the appellate authority held them to be 'manufacturer' as defined under Rule 2(h), and proceeded to take support from the Hon'ble Supreme Court's judgment in Hyderabad Industries Ltd. vs. Union of India 1999 (108) ELT 321 (SC). According to the learned Commissioner (Appeals), the importer should be treated as 'manufacturer' of the imported goods and consequently the exemption provided under Rule 2A should be applicable to the goods. The present appeal of the Revenue is directed against the appellate Commissioner's decision. 3. After examining the records and hearing both sides, we have found enough reasons for a remand of this case to the original authority. Firstly, the finding of fact recorded by the Commissioner (Appeals) is directly in conflict with that recorded by the original au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 2(q) of the SWM (PC) Rules and the package to be a "retail package" as defined under Rule 2(p). Another significant observation made by the court is that retail sale does not have to be only through retail sale agencies or other instrumentalities. Ultimately, the packages sold by the assessees to the above agencies were held to be assessable to duty of excise on the basis of MRP under Section 4A of the Central Excise Act. 4. On the other hand, the learned counsel for the respondent claimed support from paragraphs 9 to 16 of the apex court's judgment, which dealt with the assessment of ice-cream sold by the assessees to hoteliers. The apex court held that the ice-cream packages supplied by the assessees to hotels for being sold to ultimate consumers in small quantities would certainly come within the definition of "wholesale packages" as defined under Rule 2(x)(ii). It was held that Rule 29 would apply to such packages, which did not require the price to be declared thereon. The Hon'ble Supreme Court also found the goods to be exempt under Rule 34 on the ground that the ice-cream was specially packed for serving an industry. Their Lordships obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold to such consumers. The finding of the original authority on this question of fact is in favour of the Revenue and that of the appellate authority on the same question is against the Revenue. Apparently, this has resulted from non-application of mind on the part of the Commissioner (Appeals). 6. Secondly, we have found from the available records that the procedure of provisional assessment of tiles imported by the respondent was withdrawn by the Customs House in March 2008. Earlier, the tiles imported by the respondent used to be provisionally assessed and the assessments were finalised on the basis of certificates issued by the jurisdictional Central Excise Superintendent regarding the manner in which the tiles were disposed of in India. This procedure, it appears, was appropriate under Section 18(1) of the Customs Act. However, this procedure was withdrawn w.e.f. 01/04/2008 as evidenced by a letter dated 27/03/2008 of the Additional Commissioner of Customs (Gr. III) addressed to the Managing Director of the respondent-company. Accordingly, the subject Bill of Entry was assessed without resort to the procedure of provisional assessment. In the new procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and this Tribunal. Though it referred to Supreme Court's judgment in Jayanti Food Processing (supra) it did not usefully advert to the relevant findings recorded by the apex court. It is not clear whether the amended rules were considered by the original authority. 8. Of all the aspects considered by us, the most crucial one is about 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. We are of the view that the respondent should get a reasonable opportunity of adducing evidence and of being heard so that the original authority can take a decision afresh, having regard to the observations contained in our order. In order to enable that authority to do so, we set aside the orders and allow this appeal by way of remand. It will be open to the respondent to place documentary evidence before the original authority and rely on appropriate case law in support of their claim for assessment of the goods in terms of Section 4 of the Central Excise Act. It goes without saying that the case law cited before us on behalf of the Revenue shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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