TMI Blog2014 (2) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... e. - C/1291, 1292/06 364 & 365/07 - Final Order Nos. A/1773-1776/2013-WZB/C-I(CSTB) - Dated:- 27-6-2013 - Ashok Jindal And S K Gaule, JJ. For the Appellant : Shri Prakash Shah, Adv. For the Respondent : Shri K S Mishra, Addl. Commissioner (AR) PER : S K Gaule Heard both sides. 2. The appellant filed these appeals against order-in-original CAO Nos. CC-(SP)-15/2006/ACC(Adj) dated 06.101.2006 22/2007/CAC/CC(I)/AKP/Gr.VB dated 27.02.2007 whereby the learned Commissioner (Appeals) has confirmed the differential duty and ordered for confiscation of the goods and imposed penalties of Rs. 50,26,981/- and of Rs. 2,00,000/- on the appellant and the General Manager (Finance Administration) of the appellant Company respectively under Sections 114A and 112 of the Customs Act, 1962. The issue involved in these appeals is common therefore, all the four appeals are taken up together for disposal. 3. Briefly stated facts of the case are that the appellant have imported certain consignments of Molded Case Circuit Breakers (MCCBs) and Plugs and Sockets. The imported plugs and sockets were not individually packed and are received in a carton consisting of 10, 50 or 100 bare plu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment of customs duties are to be in the form in which the goods are presented for assessment at the time of import. 4.1.1. The goods undisputedly were not in packaged form. The appellant placed reliance on the judgement of the Hon'ble Apex Court in the case of Jayanti Food Processing (P) Ltd. Vs. Commissioner of Central Excise, Rajasthan, reported in 2007 (215) ELT 327 in support which prescribed various factors for valuation of the goods and the assessment of duty under Section 4A of the Act and their case is not falling under those factors initiated by the Apex Court. 4.2.1 So far as the MCCBs are concerned the contention is that the MCCBs imported by the Appellants are not commodities in packaged form. The packing is meant only for the purpose of ease of transportation. The MCCBs are not intended for retail sale. The MCCBs provide overload and short circuit protection for all circuit elements. They are designed for use in Distribution Boards, Control Panels, Combination Starters, in separate enclosures and meet the requirements of lighting, distribution and power circuits. MCCBs are sold though the stockist only. The MMCB sold to Panel Builders and contractors/professi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the learned AR, during the course of arguments, conceded that each of the packages of MCCBs bore the above declaration. The only contention of the department is that the declaration ought to have been made on the packages while the goods were in the custody of the Customs. In this regard the contention is that the declaration in the Appellants' warehouse before the sale in the market is a due compliance of law and show the intention of the Appellants that the imported MCCBs were not intended for retail. In view of the aforesaid, the Appellants rightly claimed the exemption under erstwhile Rule 34 of the PC Rules. They placed reliance on Tribunal in the case of Controls Switchgears Contractors ltd. V/s. Commissioner of Central Excise, Noida, reported in 2005 (183) ELT 95. The appeal filed by the department against the said order of this Hon'ble Appellate Tribunal is dismissed by the Hon'ble Apex Court as reported in 2011 (274) ELT A109. 4.2.5 The contention is that no retail sale price was declared by the Appellants on the package of the MCCBs. No retail sale price was required to be declared on the plugs and sockets as they were not in the packaged form. The contention is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CVD) under MRP based valuation for the purpose of payment of additional duty of Customs (CVD) or otherwise. Admittedly the imported plugs and sockets were imported in bulk packing. There is no rebuttal on the part of the department on this count. Hon'ble Apex Court in the case of Jayanti Food Processing (P) Ltd V/s. Commissioner of Central Excise, Rajasthan, reported in 2007 (215) ELT 327 held that the following would be factors to include the goods in Section 4A(1) (2) of the Act: i) The goods should be excisable goods; ii) They should be such as are sold in the package; iii) There should be requirement in the SWM Act or the Rules made thereunder or any other law to declare the price of such goods relating to their retail price on the package. iv) The Central Government must have specified such goods by notification in the Official Gazette; v) The valuation of such goods would be as per the declared retail sale price on the packages less the amount of abatement. If all these factors are applicable to any goods, then alone the valuation of the goods and the assessment of duty would be under Section 4A of the Act." 6.1.1 The department could not sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nabling the proper officer to determine RSP in a case where the importer does not declare RSP on the imported package. 6.2.4 So far as the decision of the case Sushil Agarwal (supra) relied upon by the department is concerned, we find that the said order was passed on application under section 129E of the Customs Act, 1962 seeking waiver of pre-deposit. The order passed on the application of waiver of pre-deposit is based on prima facie view and dispensing with the pre-deposit cannot be inclusive. Similar view was held by the Hon'ble High Court in the case of Sir Harkishandas Narottamdas Hospital. Further the Hon'ble Supreme Court in the case of P.Kasilingam Ors. V/s. P.S.G. College of Technology Ors. held that the "the Act and the Rules form part of a composite scheme. Many of the provisions of the Act can be put into operation only after the relevant provision or form is prescribed in the Rules. In the absence of the Rules the Act cannot be enforced. 7. In view of the above discussions the impugned orders are not sustainable and are accordingly dismissed. Appeals are allowed. (Operative part of the order was pronounced in Court on 27.6.13) - - TaxTMI - TMITax - Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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