TMI Blog2016 (3) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... ling price' as per the Rules instead of opting for an opportunity to collect more duty through an inapplicable provision. Being parts of tractors, the goods cannot but find their way through commercial channels to an end-consumer who is an individual. The form of packing cannot alter this reality. By and large, manufacturers do not sell directly to retailers; they, too, with such an interpretation of applicability of 'retail selling price' prescription could claim that their packing is intended only for the intermediaries in the channel. That would run counter to the avowed objective of the law relating to affixing of details on retail packing. The channel is, therefore, not relevant and only the product is. Upon sales of such notified products to institutions who are the deemed final consumers, escapement from 'maximum retail price' assessment even if the goods do have such labeling is an option. This facilitation is a consequence of such institutions absorbing the product as an input for the service rendered by them to the final consumers or for manufacture of a final product. Tractor parts are not amenable to sale in such manner. It is the produce of the appellant that will a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lower authority confirming duty of ₹ 4,96,388/- for the period from March to April 2007 and appeal no. E/1902/10-MUM order-in-appeal no. PIII/VM/160/10 dated 9th July 2010 upholding the order of the lower authority confirming duty of ₹ 33,91,537/- for the period from March to December 2008 are also taken up for simultaneous disposal. 3. The original authority, Commissioner of Central Excise, Pune-III vide impugned order-in-original no. 05/CEX/2009-10 dated 29th June 2009 based the demand on the finding that the goods had been cleared in bulk with further packaging for retail market done at the unit in the Domestic Tariff Area; that the provisions of section4A of Central Excise Act, 1944 for MRP-based assessment would not apply to the appellant because the mandate of packing and affixing MRP under the Standards of Weights and Measures Act,1976 comes into effect when the domestic unit sells these parts after further packaging; that VAT liability does not arise in such stock transfers and that they were not entitled to exemption notification no.23/2003-CE dated 31st March 2003 in the absence of prior permission of Development Commissioner for clearances into the Dome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal held that imported goods which underwent labeling prior to clearance for home consumption after landing in India being liable to additional duty did not amount to manufacture and excise duty thereon since additional duty equal to excise duty was leviable. On the issue of invoking extended period, the decision of the Tribunal in Alembic Ltd v Commissioner of Central Excise, Vadodara-II [2014 (308) ELT 535 (Tri-Ahmd)] was cited. 7. Learned Authorized Representative relies upon the provisions of section 3, 4 and 4A of Central Excise Act, 1944 and section 3(1) and section 3(5) of Customs Tariff Act, 1975. It was contended that the goods that are valued under section 4A(2) must be such that have declaratory mandate under what was then the Standards of Weights and Measures Act, 1976 and should be notified under section 4A(1). It was also contended that the immunity to invoking the extended period on the count of revenue neutrality was not tenable in view of the decision of the Hon'ble Supreme Court in Dharampal Satyapal v Commissioner of Central Excise, New Delhi [2005 (183) ELT 241 (SC)] was relied upon. 8. Having perused the records and considered the submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out recourse to the refund mechanism available to countervailed imports. The refund under notification no. 102/2007-Cus dated 14th September 2007 is administered by Customs authorities who collect the special additional duty on imported goods. Imported goods do not come within the ambit of VAT statutes of states and will not be leviable to VAT if used by the importer; countervailing being necessary in that specific type of transaction, ascertainment of non-use by the importer is a pre-requisite for refund of tax. Produce of EOUs are, by its transaction within the taxable territory of the states, directly under the control and assessment of the commercial tax department of the states. Therefore, the exemption under Central Excise Act, 1944 supra operates without the need for a procedure corresponding to that performed in relation to import goods. The attempt in all three impugned orders to predicate the exemption on ascertainment of discharge of VAT liability is contrary to the exemption notification itself and also contrary to the constitutional scheme of taxation. That the goods are liable to VAT is sufficient to exempt it from the ambit of the countervailing tax entailed upon imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to declare 'retail sale price' on the package. 15. It is not the packaging that determines the applicability of mandate of affixing the 'retail sale price' but the product itself. Consequences of non-conforming packaging are not escapement from the mandate but the enforcement of penal detriment. The reasoning in the impugned order that bulk packaging will render the tractor parts outside the pale of 'retail selling price' is flawed as the primary responsibility under Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 is to penalize non-compliance and to determine the 'retail selling price' as per the Rules instead of opting for an opportunity to collect more duty through an inapplicable provision. Being parts of tractors, the goods cannot but find their way through commercial channels to an end-consumer who is an individual. The form of packing cannot alter this reality. By and large, manufacturers do not sell directly to retailers; they, too, with such an interpretation of applicability of 'retail selling price' prescription could claim that their packing is intended only for the intermediaries in the c ..... 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