TMI Blog2016 (1) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... entire proceedings of redetermining the R.S.P. on the imported goods carried out by the Customs is purely based on the contemporaneous RSP noticed as per the NIDB data and stray market enquiry of other cell phones importers. - adjudicating authority in his findings at para-33 held that he is not concerned on what price the importer have ultimately sold their goods in retail but concerned only with correct R.S.P and alleged that appellants have not declared the correct R.S.P. Once the adjudicating authority disputes the R.S.P, the burden is on the Revenue to establish at what price such goods were sold by the appellants to the ultimate consumer. We find voluminous records were submitted by the appellant before the adjudicating authority in support of retail sale price of their goods. We direct the adjudicating authority to verify the details of R.S.P of the imported goods cleared by the appellants and see whether the appellants have sold the goods as per the declared RSP or whether they have altered the RSP or sold it at higher price than what was declared on RSP of such goods and also to verify whether any flow back received for the retail supplier and determine the R.S.P stric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Price (R.S.P) in all the live consignments and 6-past consignments and also proposing to redetermine the value at higher R.S.P based on contemporaneous R.S.P of identical other similar models. SCN also proposed to confiscate the seized excess goods and undeclared goods and also proposed to impose penalty on the appellant company under Section 112 (a) and Section 114A and penalty on the co-noticee Shri Raj Kumar Harwani under Section 112 (a) of the Customs Act. 3. The details of Bills of Entry are listed below :- S. No. B.E.No. AV in Rs. Decl.RSP in Rs. Decl. Duty Status of B/E 1. 5232333/-18.11.2011 2,41,67,110/-- 1400 to 2300 5,11,900 Live 2. 5235745/-19.11.2011 2,27,98,138/- 685 to 1167 3,21,185 -do- 3. 5256566/-22.11.2011 2,06,16,882/- 1300 to 1650 4,72,962 -do- 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he confiscated the declared goods viz. 1,76,930 nos. of mobile phones, valued at ₹ 17,22,17,186/-in respect of eight live bills of entry except the undeclared and excess goods under B/E NO.5235745/19.11.2011 5331392/29.11.2011. (iii) She confiscated the goods valued at ₹ 13,24,73,608/- in respect of past clearances covered under the respective six Bills of Entry. (iv) She demanded differential duties on mobiles phones of different models that were recovered as undeclared goods and found excess in quantity of the declared goods in respective Bills of Entry and confiscated the said goods. However he allowed redemption on payment of fine of ₹ 3 lakhs and ₹ 2 lakhs in respect of those goods. (v) She also confirmed the differential duty of ₹ 39,49,795/- on the imports covered under Eight Bills of Entry and ₹ 31,19,432/-on the past clearances covered under Six Bills of Entry. (vi) She ordered for appropriation of ₹ 32,20,377/- deposited volunatarily by appellant as differential duty towards the Customs duty liabilities. (vii) vide Corrigendum dt. 21.1.2014, she imposed Redemption fine of ₹ 30,00,000/- and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. who cleared their own brand which are high end models and the RSP was accepted and cleared. 5.2 He submits that the department has only shown NIDB data of RSP of ₹ 3000/- but no Bill of Entry was produced and also relied market enquiry and estimate of sale price of cell phones sold and the same was relied by the department (page 16 to 169) which is not the sale price but it is only an estimate. He drew our attention to para 30.04, 30.05 and para-33 of OIO and submits that the adjudicating authority has invoked Rule 4 (b) and 5 of the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 [RSP Rules]. They are registered with both Sales Tax and Income Tax authorities and discharging VAT on their sales turnover and filing IT returns. They submitted 51 retail sales invoices of their own products to the department indicating the RSP but the same was not considered by the adjudicating authority. He submits that in compliance of Section 3 (2) of Customs Tariff Act they have duly declared the R.S.P and it was never sold at higher price at retail sale than the R.S.P. declared by them. These are sold at lesser R.S.P. whereas the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. He drew our attention to show cause notice dt page 105 and at page 49 of OIO. Hence no penalty is imposable on the second appellant. The goods are not liable for confiscation. Regarding goods which were found in excess of the declared, On imposition of penalty, he relied the following case law :- (i) VED Prakash Wadhwani Vs CC Ahmedabad 2009 (2330 ETL 356 (Tri.-Ahmd.) (ii) Madras Petrochem Ltd. Vs CC Chennai 2007 (280) ELT 712 (Tri.-Che.) He submits that their live consignments are still held up in Customs and prays that the impugned order may be set aside and also he submits that they are ready to provide all necessary documents in support of R.S.P. before the adjudicating authority. 6. On the other hand, Ld.A.R for Revenue reiterated the OIO and relied para-8 of the OIO where the statement of Shri Rajkumar Harwani, Managing Director of appellant company has been recorded where he has admitted in his statement that he is agreeing to revise the R.S.P to ₹ 3000/- and also paid the differential duty. She drew our attention to para 32.1 wherein the adjudicating authority countered the worksheet submitted by the appellant. The department has enhanced the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides and examined the records. The short issue relates to demanding of CVD based on the Retail Sale Price declared by the appellants on the imported mobile phones of various brands. There is no dispute on the classification or description of the goods except in respect two Bills of Entry where the goods were undeclared, excess quantity were noticed. We find that the Basic Customs Duty (BCD) is exempted on cellular phones only the CVD is chargeable as per Central Excise Notification No.20/2011 . Since the goods are packaged commodity, in terms of Section 3 (2) of Customs Tariff Act read with Section 4A of Central Excise Act, on importation of the said goods these are liable to be affixed with M.R.P and assessed accordingly for determining the CVD, after allowing abatement as per the notification issued under Section 4A of Central Excise Act. We find that the goods were imported in the year 2011 under 14 Bills of Entry out of which 8 are live consignments and 6 are past consignments. The adjudicating authority had rejected the R.S.P declared and affixed on the goods by the appellant on the sole ground that contemporaneous imports of similar goods where higher RSP was declared b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price declared on the package of such goods after their removal from the place of manufacture, then such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Explanation 1. - For the purposes of this section, retail sale 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, transport charges, commission payable to dealers, and all chares towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale; As seen from the above statutory provisions, we find that the authority can only redetermine or dispute the retail sale price only if the manufacturer has not declared R.S.P on the packages or not declared the actual R.S.P or tampers with, obliterates or alters the R.S.P. declared on the package of such goods. It stipulates the criteria how to determine the R.S.P. if the declared R.S.P is not acceptable by the Excise authorities. Rule 4 of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants to the ultimate consumer. If it is found that appellant altered or tampered RSP or sold at higher than RSP then they are liable for any action under Section 4A. In this regard, we rely the Hon ble Supreme court s judgement in the case of I.T.C Ltd. Vs CCE New Delhi (supra) wherein the Hon ble Apex Court laid down the principles on M.R.P. The relevant paragraphs of the order are reproduced as under :- 47. Examples of the third kind of declaration are usually to be found where assessment under Statute A is dependent upon a basis provided by Statute B. In such case, the assessing officers under Statute A cannot question the basis. That is within the province of the authorities under Statute B. 48. In the decision of Union of India v. M/s. Rai Bahadur Shreeram Durga Prasad (P) Ltd. - 1969 (1) SCC 91, the furnishing of a declaration under Section 12(1) of the Foreign Exchange Regulation Act, 1947 was a pre-condition to the export of goods under the Customs Act, 1962. This Court said that the correctness of the declaration could not be questioned by the Custom Authorities on the ground that the declaration under Section 12(1) of FERA was incorrect. Similarly, in M. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the present case. The Honble Supreme Court in the above case has clearly held that R.S.P declared is mandatory under the SWM Act it cannot be altered. The implementing authority has no power to rescrutinise or question that M.R.P which is covered under the S.W.M.Act. The Department can only satisfy itself that there is a declaration of RSP in the prescribed format. Further, we also find that the adjudicating authority has relied market enquiry estimate quotations as evidence of contemporaneous RSP imports which is not in conformity with R.S.P. Rules. 11. Further, we find, the lower authority while re-determining the R.S.P on the imported goods relied NIDB data of past imports. Whereas the appellant had produced their own R.S.P invoices (51 nos.) of lesser RSP before the adjudicating authority which is not considered on the grounds as per Rule (4) RSP of goods cleared in the past which is beyond 1 month is not comparable. If L.As view is accepted the same principle applies to NIDB data relied by the L.A. The L.A has also not brought out any evidences whether the appellant violated any of the provisions of SWM Act (LMA) as declaration of MRP/RSP on the packaged good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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