TMI Blog2018 (12) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... uch goods must be included under Third schedule to the Central Excise Act and attract duty of excise under Section 4 A of the CE Act. It may be noted that while the requirement to affix MRP is cast under SWM Act / Rules, what is relevant for the purposes of assessment of Customs duties is the MRP declared on such goods - There is no scope to go beyond the MRP declared. Hence, the observations made by Member Technical that the issue is one of misdeclaration and not mere change of MRP cannot be countenanced. It is apt to refer to the finding of the Member Judicial, in para 9 of the order, which is apposite. It is also fact, as rightly noted by the Member Judicial that the duty demand is based only on price lists and depositions, but there was no evidence that any higher MRP was affixed on the goods. Lack of any machinery provision in the Statute, to demand any differential duty if the MRP declared at the time of import was later changed or the goods are sold at higher prices - Held that:- The Member Judicial has relied on a slew of decisions, wherein it has been consistently held that no demand of differential duty could be made in such cases, till 01.03.2008. A decision ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest and penalties have to be confirmed and only the redemption fine needs to be revisited, for which purpose, he proposed to remand the matter. Thus, the following difference of opinion was referred to the third Member. Difference of Opinion Whether both the appeals are required to be allowed as held by Member (Judicial) or the appeal of M/s Mitashi Edutainment (P) Ltd is to be only partly allowed in terms of M (T) order and if the appeal of Shri. Rakesh Devendra Dugar is to be dismissed as held by Member (Technical). 2. At the outset, Shri Ahibaran, ld. AR appearing for Revenue, raised a preliminary objection that as per Section 129 C (5) of the Customs Act, if there is any difference of opinion among the members of a Division bench, the issue should be referred to the President of the Tribunal, who shall either himself hear the case and settle the difference of opinion or refer the matter to any other Member; Due to vacancy of the Post of President of the Tribunal, administrative functions of the Tribunal are being handled by Shri. Anil Choudhary, Member (Judicial) (myself) in the capacity of duly appointed Head of the Department; and the HOD cannot exercise the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Retail Price of the goods, etc. as required under the provisions of the Standards of Weights and Measures Act and the rules made thereunder. Upon import of such goods, the appellant is liable to pay Additional Duty of Customs under Section 3 (1) of the Customs Tariff Act (CVD) which shall be equal to the rate of duty of excise leviable on like goods, when manufactured in India. If the said goods are required to be affixed with the Retail Sale Price (RSP), under the provisions of the Standards of Weights and Measures Act and rules made thereunder and if the said goods notified for assessment based on their Retail Sale Price (RSP) in terms of Section 4 A of the Central Excise Act, 1944, the CVD shall also be paid on the basis of the said RSP, after deducting the abatement prescribed in terms of the Notification issued under Section 4 A, ibid. Accordingly, the appellant has also been paying CVD on the basis of the RSP declared on the commodities, at the time of their importation. 5. In this connection, the Directorate of Revenue Intelligence has conducted certain investigations and also detained / seized some of the consignments imported by the appellant. Statements were also recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) (iii) of the CE Act, 1944, as the subject goods are covered under Schedule III of the Act, and if at all, only duty of excise could have been demanded from the appellant; Even if any duty of excise is demanded, the appellant would be entitled for small scale exemption as their turnover was within the threshold limit of ₹ 1.5 Crores per annum; Further during the relevant time, there was no machinery provisions under Section 4 A of the CE Act that if the goods notified under the said section are sold at a higher MRP, to demand excise duty on such higher MRP, and in the absence of any such mechanism, no CVD could be demanded on the basis of the alleged higher sale price; the said lacunae was removed under Excise law, only with effect from 01.03.2008, with the introduction of Central Excise (Determination of Retail Sale Price of excisable goods) Rules, 2008 and the subject imports were prior to this date; Reliance in this regard was placed on various decisions, such as ACME Ceramics VS CCE 2014 (340) ELT 542 Tri-Ahmd, CCE Vs Citizen Ceramic-2016 (330) ELT 105 Tri-Ahmed, Suzuki Ceramics Vs CCE - 2016 (334) ELT 169 Tri-Ahmed and ABB Ltd. Vs CCE 2014 (311) ELT 113 Tri-Bang; Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage of its value, the value of the imported article shall, notwithstanding anything contained in section 14 of the Customs Act, 1962 (52 of 1962), be the aggregate of - (i) the value of the imported article determined under sub-section (l) o section 14 of the Customs Act, 1962 (52 of 1962) or the tariff value of such article fixed under sub-section (2) of that section, as the case may be; and (ii) any duty of customs chargeable on that article under section 12 of the Customs Act, 1962 (52 of 962), and any sum chargeable on that article under any law for the time being in force as an addition to, and in the same manner as, a duty of customs, but does not include- [(a) the duty referred to in sub-section (1), (3), (5), (7) and (9);] (b) the safeguard duty referred to in sections 8B and 8C; (c) the countervailing duty referred to in section 9; and (d) the anti-dumping duty referred to in section 9A: [Provided that in case of an article imported into India,- (a) in relation to which it is required, under the provisions of the [Legal Metrology Act, 2009 (l of 2010)] or the rules made thereunder or under any other law for the time being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article under sub-section (2) of section 4A of that Act There is no scope to go beyond the MRP declared. Hence, the observations made by Member Technical that the issue is one of misdeclaration and not mere change of MRP cannot be countenanced. In this connection, it is apt to refer to the finding of the Member Judicial, in para 9 of the order, which is apposite. It is also fact, as rightly noted by the Member Judicial that the duty demand is based only on price lists and depositions, but there was no evidence that any higher MRP was affixed on the goods. 13. Further, with regard to the plea of lack of any machinery provision in the Statute, to demand any differential duty if the MRP declared at the time of import was later changed or the goods are sold at higher prices, I find that the Member Judicial has relied on a slew of decisions, wherein it has been consistently held that no demand of differential duty could be made in such cases, till 01.03.2008. A decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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